Central Texas shooting spree case delay highlights state hospital struggles

AUSTIN (KXAN) – Justice could be a long time coming for victims of the December 2023 Austin shooting spree, and not just because of how complicated the capital murder case is – with six killed and more wounded in multiple seemingly random acts of violence across two counties.

The suspect, 35-year-old Shane James, was found incompetent to stand trial in November. That means his case is paused until he is sent to a state hospital and his mental competency is restored so he can participate in his own defense. When exactly that may happen isn’t clear – just getting into one of Texas’ mental hospitals requires months, or more, on a waitlist, according to recent state data.

James now sits in line behind hundreds of other individuals in county jails that are often poorly equipped to handle people experiencing mental illness.

The extended waitlist and its impact on the justice system have proven to be intractable problems for state officials who have tried to address it from multiple angles. They’ve created alternative restoration paths within jails and through outpatient settings; they’ve provided incentives to improve state hospital staffing; they’ve dedicated billions of dollars to renovate hospitals and add new capacity. Yet, the state hospital waitlist remains lengthy.

Looking to identify solutions and inefficiencies, State Sen. Charles Perry, a Lubbock Republican, passed legislation last year directing the State Auditor’s Office to review Texas’ competency restoration system. Perry’s office did not respond to KXAN’s requests for comment.

After months of work, that audit report was released in November. The findings show Texas made headway in reducing wait times, but the probe also found numerous shortfalls.

While HHSC has touted the diminishing waitlist as evidence that the Legislature and Gov. Greg Abbott’s multi-billion-dollar state hospital investments are paying off, other mental health experts still see a system with significant problems that need to be addressed.

Cycle back again and again

Auditors quantified a frustrating reality for mental health officials: the same people keep cycling through the system.

In their study, auditors looked at a group of over 15,600 people on the waitlist from September 2018 to January 2024. They found 10% were reoffenders. That means over 1,500 individuals were put on the waitlist multiple times for new charges. In one case, auditors found an individual who appeared on the waitlist for eight different arrests, including five misdemeanor trespasses, and was admitted to a state hospital three times.

Travis County had nearly 700 individuals reappearing on the waitlist – the second-highest of any county in the state, according to the report.

Greg Hansch, executive director of the National Alliance on Mental Illness Texas, called the number of reoffenders “shocking.” NAMI is a nonprofit that works to improve the lives of people with mental illness.

“That’s a lot of people to be cycling through this system, which has limited capacity to begin with,” Hansch said. “It says to me, we could probably be doing a better job serving those people and keeping them off of the waitlist” to begin with.

Decompensation is when an individual gets restored to competency returned to jail but then spirals back into serious mental illness and must be placed on the waitlist again. Auditors found over 340 people who likely decompensated and were placed on the waitlist two to six times for the same charges.

KXAN previously reported on the case of Marine Corps veteran Adan Castaneda, who was found incompetent to stand trial after being charged with multiple felonies for shooting a handgun at his parents’ house in the middle of the night in 2011. Castaneda cycled back and forth from Comal County Jail to the state hospitals twice.

“They say you’re competent, incompetent, competent, incompetent, send you back and forth to jail and a psych ward, back and forth,” Castaneda told KXAN in an interview in 2021. “It’s like purgatory. It’s a loophole.”

Castaneda was ultimately found not guilty on some charges and not guilty by reason of insanity on the remaining ones, and he was later released from custody. His mother, Maria Anna Esparza, told KXAN in December that he is doing much better now.

While some people were getting treated multiple times, auditors also found others who never got to the state hospital at all.

‘Timed out‘

State law does not allow an incompetent person to be kept waiting in jail for a state hospital bed longer than the maximum sentence for the crime they have been charged.

Auditors found 168 people “timed out” of jail since late 2018 because they were waiting for mental health treatment. They were never convicted but met the maximum length of a sentence for their charge.

“Individuals who ‘timed out,’ including those who are indigent, are required to be released even if their competency has not been restored,” the audit stated.

Krish Gundu, co-founder and executive director of the nonprofit Texas Jail Project, said people who timed out are “exactly the kind of population that should be aggressively engaged if we are serious about public safety.” She questioned whether local mental health authorities in the state, which received funding to work with those populations, are doing enough. Texas Jail Project is a nonprofit that advocates for people in jail and their family members.

Auditors also uncovered 54 people who died while waiting for a spot in a state hospital – 30 of them died in jail or medical facility. Auditors found those 30 jail deaths by cross-referencing the inmate death records from the Texas Commission on Jail Standards. Auditors identified another 24 deaths that weren’t reported to TCJS, likely because they weren’t in custody and were eligible for bond, the report states.

“Those are terrible tragedies that are preventable,” Hansch said.

Hansch said those are examples of the “serious reality” faced by people in the mental health system. When services don’t match people’s mental health needs, death can be an inevitable outcome, he said.

More alternatives need to be used before people are charged with crimes, to head people off their journey toward the waitlist before they even get there, he said.

Alternatives to the state hospital

Alternative programs have helped reduce the number of people on the waitlist. Some counties have developed processes to divert people with mental health issues to community-based mental health programs, but “most counties do not have alternative programs for competency restoration,” auditors found.

From September 2018 to Dec. 31, 2023, roughly 6%, or about 950, of more than 15,600 people on the waitlist were removed after their competency was restored through an outpatient or jail-based restoration program.

A limited number of counties use outpatient competency restoration or jail-based competency restoration services.

Hansch and other mental health experts have expressed concerns about jail-based competency restoration, saying the jail is not the right setting for mental health treatment.

“It’s not ideal for jail-based restoration to be so heavily utilized,” Hansch said. “It shouldn’t be seen as the primary solution to the wait list issues that we have in the state.”

In a 2020 interview, Danny Smith, director of mental health programs with the Travis County Sheriff’s Office, expressed similar concerns about jail-based competency and said housing mentally ill people on the waitlist was straining jail resources. Smith interviewed with KXAN again in 2024. He said there are still extended waits for state hospital beds, and there needs to be more community resources for people before jail is the only option.

Hansch said there needs to be more robust community-based mental health treatment and better utilization of civil commitment. Outpatient programs are underutilized, Hansch said.

“One of the main reasons why it is underutilized is because – for a lot of people who could benefit from outpatient restoration – there’s nowhere for them to go,” Hansch said. “In order for them to be effective, we rely on people to have a stable living environment, and a lot of people simply don’t.”

Hansch described those problems as some of the deeper, more complex and vexing issues facing state leaders trying to alleviate the strain of the waitlist. Other clerical issues identified in the audit are probably more easily solvable, he said.

Gundu said the audit does a good job of highlighting failures of the system but leaves out several important issues.

Left out

The audit was mostly focused on back-end problems affecting and caused by the waitlist, rather than front-end issues that could alleviate the problem before it exists.

“It’s like having an overflowing bathtub that’s flooding your bathroom and being told that the problem is your drain is not big enough, instead of telling us why the faucet is stuck or why it can’t be turned off,” Gundu said.

Auditors missed the opportunity to study continuity of care queries, which are mandated for people booked in jail and tell if a person has received mental health or intellectual or developmental disabilities services in the past three years, she said.

Auditors also did not quantify the number of people with intellectual and developmental disorders who are put on the waitlist. Gundu said those people will likely never be restored to competency and need alternative services, for example, in a state-supported living center.

“Another glaring and puzzling omission is the complete silence about the I/DD population on the waitlist and Mexia and San Angelo (state-supported living centers) where they are sent for competency restoration,” Gundu said.

The audit hints at the system’s shift from one of civil commitment for those without criminal charges to forensic commitment, which is for people charged with crimes. But, Gundu said, the audit didn’t dig into the lack of civil commitments, which can be expanded and “would make a significant difference in the forensic waitlist.”

Failure to report

When a person is found incompetent to stand trial, the courts are required to notify HHSC with the order that day. As soon as HHSC receives the notification of commitment, that person can be placed on the waitlist. Without being notified of a commitment order, HHSC would not place a person on the waitlist.

 Auditors found courts consistently failed to make those reports to HHSC in a timely manner.

Over 5,500 people were reported up to a week late, nearly 2,500 more people were reported up to a month late and more than 600 people were reported more than a month late, auditors found.

HHSC told auditors when a person is reported over three months late, the agency will place them higher on the waitlist with other individuals who were committed in the same timeframe, according to the audit.

In one case, a court failed to report a person found incompetent to stand trial to HHSC for 789 days, according to the report. That means, for more than two years, that person was waiting in jail for a spot in a state hospital with no chance to get one because he had not been placed on the list for admittance. The audit did not mention any accountability for that oversight.

Since the waitlist is confidential, it isn’t clear who that person was, or which court failed to report them to HHSC.

Due to that confidentiality, it is unclear when any particular person is placed on the waitlist, or how long they have before being admitted to a hospital.

James, for example, could wait a year or more before getting to a state hospital. State data from August shows the average person in James’ situation was waiting 367 days.