This story has been updated.

Faced with a growing number of mentally ill inmates in the county jails, leaders in Bexar County and Dallas County are scrambling for help from the state, which is legally obligated to treat such inmates.

People who’ve been accused of a crime but are deemed incompetent to stand trial because of mental health issues typically go to state hospitals so they can receive treatment and eventually be declared competent. Nonviolent offenders in Bexar County typically go to the San Antonio State Hospital, while those facing violent felony charges are moved to maximum security units at either North Texas State Hospital’s Vernon North Campus or Rusk State Hospital.

Lately, state hospital facilities haven’t been able to keep up with the mental health needs of the state’s incarcerated population. The situation has led one county to pursue legal action, while Bexar County is taking a more collaborative approach to address the issue.

Staffing woes at the Texas Health and Human Services Commission have caused the agency to stop using hundreds of its mental health beds, including 193 of the 302 beds at San Antonio State Hospital, a spokesman for the agency said this month.

Meanwhile, people who have been deemed incompetent to stand trial are staying longer in county jails, often in single-cell confinement for safety reasons, according to the Bexar County Sheriff’s Office.

Bexar and Dallas county leaders have been partners on a number of recent political battles with the state, including mask mandates and enforcement of state-regulated social issues.

But as the two counties grapple with their own lingering public health and workforce issues from the pandemic, this time they’re taking different approaches.

Last month Dallas County leaders wrote to Attorney General Ken Paxton informing him the county plans to sue the state if it doesn’t come up with places to house inmates who’ve been deemed incompetent to stand trial.

Meanwhile, Bexar County is asking the state for a one-time $4.5 million infusion of cash to fund treatment for nonviolent offenders at a private mental facility. It’s also seeking $12.5 million per year to lease and staff a 44-bed county-run maximum security unit at the state’s San Antonio State Hospital.

Dallas County prepares to sue

Dallas County Commissioner Andy Sommerman, a trial lawyer who also sued Gov. Greg Abbott to allow Dallas County Judge Clay Jenkins’ mask mandate during the COVID-19 pandemic, is leading that county’s push to sue the state. The mask case is still being heard by the Texas Supreme Court, and Sommerman paused his livestream of the hearing to discuss the new potential lawsuit in an interview with the San Antonio Report Wednesday.

“Obviously this is important for those folks who have been the victim of the crime. They want their day in court,” he said.

“It’s equally, if not more, important for those who have been accused of the crime to have their day in court to determine whether they have are guilty or not,” Sommerman said. “None of that can happen until a [mentally] competent state is restored” for the individual accused.

The Texas Code of Criminal Procedure says individuals deemed incompetent must be transferred to a treatment facility “within a reasonable amount of time and without undue delay.”

Sommerman defeated Dallas County’s lone Republican commissioner, J.J. Koch, in the November election, putting the court entirely in the hands of Democrats.

Sommerman said Wednesday if the state can’t house mentally ill inmates in its own treatment facilities, he wants the state to pay for treatment at private mental health facilities.

This “abdication of responsibility is not only costing Dallas County millions, but it has the potential to give rise to a violation of the Texas Commission on Jail Standards rules” if the county jail population becomes too high, wrote Barbara Nichols, chief of the civil division of Dallas County’s District Attorney’s Office.

The Jan. 24 letter gave the state 30 days to find space for the inmates or else “Dallas County will have no choice but to bring suit … to compel compliance.”

Paxton’s office did not provide a response to an emailed request for comment Thursday.

Lengthy jail stays

The Bexar County Adult Detention Center currently houses 292 people who have been deemed incompetent to stand trial, out of roughly 4,675 total inmates, according to the Bexar County Sheriff’s office.

Of the 292, roughly the vast majority are accused of violent felonies, meaning they need to be transferred to a maximum security unit for treatment. Fifty-one of the declared incompetent inmates have been in the jail for more than 500 days, at a cost of roughly $416 per day to Bexar County taxpayers, according to the sheriff’s office.

Bexar County Sheriff Javier Salazar opens an investigation into the suspects individuals involved in the "luring" of migrants onto two flights that departed from San Antonio to Martha's Vineyard last week.
Bexar County Sheriff Javier Salazar. Credit: Scott Ball / San Antonio Report

“We don’t have the facilities to help them to get them on the right track,” said Salazar, who wrote to county commissioners on Jan. 25 asking them to join the Dallas lawsuit, noting the jail’s own critical staffing shortages.

“They’re not getting any better … they’re getting worse day by day,” Salazar said in an interview outside Commissioners Court on Tuesday. “They’re assaulting deputies, assaulting each other and harming themselves.”

Bexar County has the legal authority to release those inmates with a monitoring device, but has chosen not to because they’re considered dangerous, he told commissioners.

“They can’t proceed further into the system, however, because of the nature of what they’re accused of, we can’t just open up the door and let them back out,” Salazar said.

In December then-Bexar County Judge Nelson Wolff, a Democrat, directed attorneys to also explore the feasibility of suing the state to address the issue, including potentially hiring an outside counsel if the county’s own attorneys didn’t have enough bandwidth.

Bexar County commissioners this week discussed the Dallas lawsuit in a closed session, but county leaders said they planned to first seek collaboration with the state.

“We’re going to continue to monitor that suit, and we may take action at a later time,” said Bexar County Judge Peter Sakai, who served as a state district judge before running to replace the retiring Wolff.

Last week the court’s lone Republican, newly elected Commissioner Grant Moody (Pct. 3), Bexar County Director of Judicial Services Mike Lozito and Deputy Chief Jennifer Shumake went to Austin to meet with Brandon Watts, a program supervisor at the Texas Department of Criminal Justice.

Moody said he met later with state lawmakers who seemed receptive to the idea of getting the state to pay for inmates’ treatment. State Sen. Bob Hall, a Republican from North Texas, has already filed a bill seeking financial compensation for counties if they have to house an incompetent inmate for more than 45 days.

“These inmates consume an inordinate amount of jail resources in terms of space and personnel,” Moody wrote in a letter to state Sen. Joan Huffman, a Houston Republican who chairs the Senate Finance Committee. “As I’m sure you know, these inmates are the financial responsibility of the state, but the state currently has no beds available.”

Statewide, the Texas Health and Human Services Commission (HHSC) has taken 700 mental health beds out of service due to staffing issues, according to the agency. It announced plans to increase starting salaries for registered nurses, psychiatric nurses and food service workers on Jan. 24, the same day Dallas County’s letter was submitted.

“HHSC is looking to fill approximately 1,805 vacancies in state hospitals by offering higher starting salaries,” HHSC spokesman José Andrés Araiza said in a statement. “We are also working with the Legislature on increasing total capacity across the state by building new hospitals.”

Sommerman wasn’t optimistic about that solution, because state hospitals are located primarily in rural areas, which lack the workforce to support those positions.

Correction: An earlier version of this story incorrectly stated that maximum security units for people who are deemed incompetent to stand trial are run by the Texas Department of Criminal Justice. Those maximum security units are run by the Texas Health and Human Services Commission within certain state hospitals.

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Andrea Drusch

Andrea Drusch writes about local government for the San Antonio Report. She's covered politics in Washington, D.C., and Texas for the Fort Worth Star-Telegram, National Journal and Politico.