Competency of charged Santa Fe gunman sets up legal showdown

The Texas Attorney General’s Office filed a motion to block a Galveston County judge’s order to have UTMB’s director of mental health services perform an independent evaluation of the charged Santa Fe gunman’s competency.

A motion to vacate filed by the AG’s office reads the court has no authority to order Dr. Joseph Penn to perform the evaluation because Penn is not a party to the criminal case.

The motion further reads, “If he were to follow the Order’s dictates, he would be violating his employment contract and official statewide policy.”

Officials with the AG’s Office write UTMB provides health care services to 80% of the Texas Department of Criminal Justice’s inmate population and the Correctional Managed Health Committee sets statewide policies for employees providing this service.

Those policies prohibit employees like Penn from conducting competency evaluations, among other services, according to the motion.

This is the second legal challenge to Judge Jeth Jones’ March 10 order, seeking an independent evaluation of Dimitrios Pagourtzis’ competency. Officials with the Galveston County District Attorney’s Office declined to comment, but a copy of an email was sent to victims’ families.

“Mr. [Jack] Roady asked that I let you know the Attorney General’s Office told us this afternoon that they represent UTMB and are going to oppose Dr. Penn performing the evaluation because it goes against their policies. They sent us a copy of the motion 30 minutes ago. We do not expect Judge Jones to be able to rule on their motion, since there is a motion to recuse him pending. That is what will be heard on April 20. We will update everyone as soon as we have more specific information,” the statement read.

Pagourtzis’ defense attorney, Nicholas Poehl, sent KPRC 2 a written statement, “The Attorney General’s Motion only serves to highlight the arguments we made at the March 10th hearing, that Judge Jones ignored. Not only was the appointment of an expert untimely according to Texas law (Texas Code of Criminal Procedure Art. 46B.115), but now it seems that the Court appointed an expert who the State of Texas says is in fact expressly prohibited from conducting the examination that Judge Jones wanted. At the March 10th hearing, we asked why the previously appointed expert, Dr. Gollaher, who is both qualified and allowed by statute, was being discarded in favor of someone the Judge was appointing, without giving the State or Defense an opportunity to vet or object to. Judge Jones declined to address that question, which only adds to our concerns about his bias or prejudice, raised in our Motion to Recuse.”

For nearly four years, the families of those murdered and wounded during the May 2018 mass shooting at Santa Fe High School have pushed for more answers as to what is being done to restore the Pagourtzis’ competency.

Pagourtzis was first declared incompetent to stand trial in Dec. 2019. Every year since, doctors with North Texas State Hospital inform the court whether Pagourtzis’ competency has been restored or if further treatment is needed.

In February, doctors notified the court Pagourtzis was still incompetent and Jones ordered his commitment to the hospital be extended for another period of up to 12 months. However, during a March hearing, Jones ordered Pagourtzis’ competency to be re-evaluated by Penn. Families of the victims were hopeful this ruling would push the case closer to a trial.

“I like that the judge is actually questioning it, actually wanting to get a second opinion on it. Not just something that’s coming from the defense,” said Rosie Stone, whose son Christopher was murdered.

However, Pagourtzis’ defense attorneys then filed a “motion to recuse,” claiming Jones showed a bias against their client. Poehl said there are more than 8,600 pages of medical records showing Pagourtzis remains incompetent and claims the judge knew an independent evaluation had already been done prior to the March hearing.

A hearing on the motion to recuse is scheduled for April 20.

The administrative judge for our judicial region, Judge Susan Brown, will preside over the hearing and make the decision on the defense’s motion. It is unclear whether Brown will rule on the AG’s motion to vacate Jones’ order regarding Penn conducting an independent evaluation.

“We believe this judge is within his power, his office to make these types of decisions,” said Scot Rice, whose wife, Flo, was critically injured during the shooting. “We’re just so frustrated with the system; we don’t believe the system works. We don’t believe in this whole incompetency plea.”

KPRC 2 legal analyst said getting a judge to step down from a case is a high bar to clear.

“[It’s] Incredibly difficult because there’s a presumption the judge is fair and impartial,” said Wice.

Wice also said the law is clear when it comes to defendants who’ve been declared incompetent to stand trial.

“We don’t put people in the defendant’s chair who are incapable of understanding why they’re sitting there,” said Wice.

An associate professor of psychology at the University of Houston-Downtown, Dr. Katrina Rufino said courts use what’s called the “Dusky Standard” when determining a defendant’s competency to stand trial.

“You have to have a factual understanding of the proceedings against you, a rational understanding of the proceedings against you, and a defendant also has to have a rational ability to consult with their attorney,” said Rufino.

Rufino said depending on where a defendant is falling short in, these three areas will dictate what type of treatment is needed to restore competency.

Rufino adds competency is a separate issue from an insanity defense. Rufino said competency refers to a person’s current mental state and an insanity defense deals with a person’s mental state at the time a crime was committed.

Pagourtzis case is rare, but not unheard of, according to data from the Texas Department of State Health Services.

Records from the state show it takes doctors at North Texas State Hospital an average of 229 days to restore a defendant’s competency and the average length of stay is 255 days. Pagourtzis has been in the hospital for 1,211 days.

State records show there are currently 98 patients being treated at North Texas State Hospital’s campuses in Vernon and 164 patients at the Wichita Falls campus. Pagourtzis is being treated in Vernon.

State records show that there are currently 52 patients who’ve been at one of the campuses between one to five years and there are 10 patients who have been there five years or longer. State records also show the daily rate to treat patients at North Texas State Hospitals is $933.

“The shooter has all the rights, we have no rights and he’s being taken care of at our expense and we’re getting nowhere,” said Rice.

Family members of victims are pushing the courts for more information as to what treatments Pagourtzis is receiving.

“It’s like, is he immobile, is he like bed-ridden? Is he a vegetable? Like what exactly are we talking about?” said Stone. “They need to stop catering to the murderer and start catering to the survivors, the ones who have to continue living this life.”

About the Author:

Award winning investigative journalist who joined KPRC 2 in July 2000. Husband and father of the Master of Disaster and Chaos Gremlin. “I don’t drink coffee to wake up, I wake up to drink coffee.”