           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                   NO. AP-76,798


                     STEVEN KENNETH STALEY, Appellant

                                          v.

                              THE STATE OF TEXAS



                                   NO. AP-76,868


               EX PARTE STEVEN KENNETH STALEY, Applicant



        ON REVIEW FROM THE DETERMINATION OF EXECUTION
            COMPETENCY AND APPLICATION FOR A WRIT OF
         HABEAS CORPUS FROM CAUSE NO. C-2-009642-0387844-C
           IN THE CRIMINAL DISTRICT COURT NUMBER TWO
                        TARRANT COUNTY

      A LCALA, J., delivered the opinion of the Court in which P RICE, W OMACK,
J OHNSON, and C OCHRAN, JJ., joined. K ELLER, P.J., filed a dissenting opinion in which
H ERVEY and K EASLER, JJ., joined. M EYERS, J., filed a dissenting opinion in which
K ELLER, P.J., and H ERVEY, J., joined.
                                                                          Steven Kenneth Staley - 2

                                          OPINION

       In this case, we are asked to decide whether state or federal law disallows the

execution of a mentally ill inmate who was previously found incompetent to be executed and

later became competent only after he was involuntarily medicated pursuant to a court order.

Steven Kenneth Staley, appellant,1 raises this question in a subsequent application for a writ

of habeas corpus and a motion for review under Texas Code of Criminal Procedure Article

46.05.2 See T EX. C ODE C RIM. P ROC. arts. 11.071, § 5, & 46.05. Article 46.05 provides that

a “person who is incompetent to be executed may not be executed” and permits appeal to this

Court of a finding under that article. T EX. C ODE C RIM. P ROC. art. 46.05(a), (l). With respect

to appellant’s motion for review, we conclude that this Court has jurisdiction over this appeal

pursuant to the current competency-to-be-executed statute, including jurisdiction to review

the involuntary-medication order to the extent that it is intertwined with the trial court’s




1
       Staley is the applicant for purposes of the habeas application and the appellant for purposes
of the Article 46.05 appeal, but, for consistency, we refer to him throughout the opinion as
“appellant.”
2
        See TEX . CODE CRIM . PROC. art. 46.05(l); former TEX . CODE CRIM . PROC. art. 46.05(k)
(Vernon 2005). The competency-to-be-executed statute provides the procedure and the standard
under which an inmate’s competency to be executed is assessed. See TEX . CODE CRIM . PROC. art.
46.05(h). It states, “A defendant is incompetent to be executed if the defendant does not understand:
(1) that he or she is to be executed and that the execution is imminent; and (2) the reason he or she
is being executed.” Id. It codifies the constitutional standards set forth in Ford v. Wainwright, 477
U.S. 399 (1996), and Panetti v. Quarterman, 551 U.S. 930 (2007). See Green v. State, 374 S.W.3d
434, 440 (Tex. Crim. App. 2012) (explaining that competency-to-be-executed statute codifies
constitutional standards delineated by Supreme Court in Ford and Panetti).
                                                                       Steven Kenneth Staley - 3

ruling that appellant is now competent to be executed.3 As to the merits of the appeal, we

hold that the trial court’s order mandating involuntary medication of appellant was not

permitted under the competency-to-be-executed statute and did not meet the requirements

of other statutes that may permit involuntary medication. Because the trial court lacked

authority to render it, we vacate the trial court’s involuntary-medication order. Furthermore,

we determine that, but for that unauthorized order, the evidence conclusively shows that

appellant is incompetent to be executed, and, therefore, we also vacate the trial court’s order

finding appellant competent to be executed.4

                                        I. Background

       In 1991, appellant was convicted of capital murder in Tarrant County. Appellant and

two others rounded up a group of employees at a restaurant, threatened them with firearms,

took their possessions, and then killed the manager after taking him hostage. A jury found

appellant guilty and answered the special issues in the affirmative. After the trial court

sentenced him to death, appellant exhausted his appellate remedies and was denied relief on

two applications for a writ of habeas corpus.5 The trial court set his execution date for


3
        Appellant filed a “Brief In Support of Motion to Send Record To Court of Criminal Appeals,
Notice of Appeal, And Application for Writ of Habeas Corpus Under Article 11.071, Texas Code
of Criminal Procedure.” For most of his nine grounds, appellant presents a single set of arguments
that are apparently intended to apply both to the appeal and to the writ application.
4
       Regarding the competency claims raised in the application for a writ of habeas corpus, we
dismiss those claims as non-cognizable. See Green, 374 S.W.3d at 446 (holding that competency-to-
be-executed claims “not cognizable” on habeas corpus).
5
       See Staley v. State, 887 S.W.2d 885 (Tex. Crim. App. 1994) (affirming conviction and
                                                                              (continued...)
                                                                       Steven Kenneth Staley - 4

February 2006. Since then, the trial court has held two hearings on the matter of whether

appellant is competent to be executed. He was found incompetent at the first hearing and

competent at the second hearing.

       A. The First Competency Hearing

       The month before the scheduled execution in 2006, appellant filed a motion with the

trial court challenging his competency to be executed pursuant to the then-applicable

competency-to-be-executed statute. See former T EX. C ODE C RIM. P ROC. art. 46.05 (Vernon

2005). The trial court ordered a psychiatric evaluation of appellant.

       The court held a hearing on appellant’s motion, at which the medical experts who had

evaluated appellant, Dr. Randall Price and Dr. Mark Cunningham, testified. They explained

that, although appellant understood that he was to be executed, he did not have a rational

understanding of the reason for his execution.6 They testified that he suffered a severe,

chronic psychosis, namely paranoid schizophrenia, with which he had been routinely

diagnosed for nearly 15 years, and that his condition had deteriorated over time. They stated

that, since 1993, appellant had been prescribed various psychotropic medications, most

notably Haloperidol (“Haldol”), in an effort to control the symptoms of his illness. However,




(...continued)
sentence on direct appeal); Ex parte Staley, No. WR-37,034-01 (Tex. Crim. App. Sept. 16, 1998);
Ex parte Staley, 160 S.W.3d 56 (Tex. Crim. App. 2005). The prior writ applications challenged the
judgment on various grounds not related to the present issues.
6
       Another expert also testified that appellant did not understand that his execution was
imminent.
                                                                      Steven Kenneth Staley - 5

they noted that he had not consistently complied with that prescription and, in the months

preceding the competency evaluation, had frequently refused medication.

       Dr. Cunningham, a clinical and forensic psychologist, testified that appellant had

demonstrated numerous symptoms of psychosis over the course of many years, including

self-inflicted injuries, grossly neglected personal hygiene, resting in his own excrement and

urine, irregular eating and sleeping habits, including refusing food and fluids, delusions of

paralysis, and lying on one spot in his cell so long as to rub a bald spot in the back of his

head. He explained that appellant had a history of “spontaneously and repeatedly refusing

medication” so that long-term stabilization “may well require” compulsory medication. He

opined that it would be “good medical practice” to medicate appellant to control his

symptoms.

       Dr. Price, also a clinical and forensic psychologist, testified that appellant’s symptoms

included “syntactical aphasia,” which he described as “word salad,” or the nonsensical

ordering of words, as well as the regular use of fictitious language. He said that during those

periods when appellant was compliant with his prescription, he showed no overt signs of

decompensation, but that he had frequently refused medication because he denied his illness

and believed the medication was an attempt to “poison” him.

       Based on this testimony, the trial court ruled that appellant was incompetent to be

executed. Afterward, the case was forwarded to this Court in accordance with the then-

applicable statute. See id. at 46.05(k). The next day, the trial court withdrew the execution
                                                                          Steven Kenneth Staley - 6

date.7 Nevertheless, appellant later filed a motion to stay the execution with this Court. This

Court issued an order dismissing his motion as moot because the trial court had already

withdrawn the execution date. Ex parte Staley, No. WR-37,034-03 (Tex. Crim. App. April

12, 2006) (per curiam). The order advised the trial court, however, of its statutory duty to

conduct periodic evaluations of appellant. See id. (citing former T EX. C ODE C RIM. P ROC. art.

46.05(k) (Vernon 2005)).8

        The following month, the State filed a motion with the trial court seeking involuntary

medication of appellant.       In support, it cited both a medical purpose—to control the

symptoms of appellant’s psychosis and ease his suffering as a result of his mental

illness—and the State’s interest in enforcing the judgment.              Appellant disputed both

purposes. He challenged the medical purpose by arguing that psychotropic drugs can yield

harmful side effects. He also contended that “artificial competence” achieved by medication

does not constitute competence under the competency-to-be-executed statute, the federal

Constitution, or the Texas Constitution.




7
        The trial court’s withdrawal of the execution date was premised on Texas Code of Criminal
Procedure Article 43.141, which governs the scheduling, modification or withdrawal of an execution
date. See TEX . CODE CRIM . PROC. art. 43.141.
8
        We note that the competency-to-be-executed statute permits a trial court to order periodic re-
examination of an incompetent inmate by mental health experts only after this Court has entered a
formal stay of execution, which it did not do in this case. See TEX . CODE CRIM . PROC. art. 46.05(m);
former TEX . CODE CRIM . PROC. art. 46.05(k) (Vernon 2005). Although it is arguable that the trial
court was without authority to conduct periodic re-evaluations of appellant absent a stay, let alone
to order him medicated, we do not consider that argument because it was not advanced by the parties
and would only serve as an alternative disposition leading to the same result in this appeal.
                                                                     Steven Kenneth Staley - 7

       The trial court held a hearing at which it heard arguments from the State and

appellant. Based largely on the evidence that had been introduced at the competency hearing,

the trial court granted the motion and entered an order authorizing the involuntary medication

of appellant. It concluded that (1) the State has a legitimate interest in enforcing the

sentence, which is not outweighed by appellant’s interest in avoiding medication; (2)

medication is the least intrusive and, in fact, only method of achieving competency; (3)

compelled medication is in appellant’s “best medical interest” because (a) without it, he will

suffer “frightening delusions and general disorder within his mind” and (b) there is no

evidence that he had suffered any side effects from the medication; and (4) without

medication, appellant posed a danger to himself and others.

       By mandamus and direct appeal, appellant attempted to challenge the trial court’s

order requiring involuntary medication, but those challenges were unsuccessful. This Court

denied him leave to file an application for a writ of mandamus and prohibition and a motion

for stay, but presumably this denial was based on his failure to show that a ministerial duty

was at issue. After that, this Court, by written opinion, dismissed his direct appeal for lack

of jurisdiction on the basis that the involuntary-medication order was a non-appealable,

interlocutory order. Staley v. State, 233 S.W.3d 337 (Tex. Crim. App. 2007) (“Staley I”); see

former T EX. C ODE C RIM. P ROC. art. 46.05 (Vernon 2005). By mid-2006, therefore, appellant

was found incompetent to be executed but was to be involuntarily medicated pursuant to the

trial court’s order, and no litigation transpired for six years.
                                                                     Steven Kenneth Staley - 8

       B. The Second Competency Hearing

       In 2012, the State filed with the trial court a “request for further competency

examination” under the current competency-to-be-executed statute, and the trial court held

a second competency hearing. See T EX. C ODE C RIM. P ROC. art. 46.05(k), (m).

       The trial court received testimony from Dr. Price and another clinical and forensic

psychologist, Dr. Kristi Compton, who each determined that appellant was competent to be

executed. By April 2012, Dr. Price had examined appellant five times. Dr. Price discussed

his findings from examinations done in June 2006 and October 2010. He stated that,

although appellant was experiencing delusional thoughts such as having “180 zillion dollars,”

his psychotic and schizophrenic symptoms were under control with about 60 percent

compliance with the Haldol prescription. Dr. Price testified that appellant knew many of the

details about his litigation and the crime. He knew the names of the defense attorneys, the

prosecutors, and the victim, and that he was convicted of killing a man during the course of

a robbery of a restaurant. Appellant said that he thought he had received a fair trial except

for the admission of certain extraneous-offense evidence during the guilt stage. He knew that

the death penalty was, in his words, to “retribute the public for a heinous crime.” He

understood that the process for the death penalty is lethal injection after “6:00 p.m. at night

on the date of your execution” and could name two of the three lethal fluids. He explained

death as permanently going to sleep and said he did not believe in an afterlife. Dr. Price

acknowledged that appellant did not actually believe that he would be executed because he
                                                                       Steven Kenneth Staley - 9

was convinced that his attorneys would obtain a stay. Dr. Price opined that appellant

understood (1) that he was to be executed and that his execution was imminent and (2) the

reason for his execution, thus satisfying the statutory two-pronged standard for competency

to be executed. See T EX. C ODE C RIM. P ROC. art. 46.05(h). In addition to the competency

finding, Dr. Price determined that appellant was not mentally retarded.

       Dr. Price further testified as to the effects of the medication. He explained that, in his

opinion, Haldol is medically beneficial to a patient who has the symptoms of schizophrenia

experienced by appellant. Without the prescription, a person with symptoms of schizophrenia

is in a distressed state of mind, suffering from an illness that is “creating havoc” in his head.

He acknowledged, however, that the side effects to Haldol can be “unpleasant” in that it is

a “major tranquilizer,” slows down thinking and functioning, may affect a person’s use of

his arms and legs, and may cause dryness of the mouth. Dr. Price explained that these side

effects were controlled in appellant, who was taking another drug, Cogentin, for that purpose.

He further confirmed that no evidence suggested that appellant has suffered any harmful side

effects. He testified that, without medication, appellant will continue to suffer “frightening”

delusions and other mental disorders and that appellant has been asymptomatic while on

medication.

       The State also introduced a report by Dr. Compton detailing her findings from her

examination of appellant in April 2012. The report indicated that, in October 2010,

appellant’s condition had deteriorated and he was “catatonic.” He heard auditory
                                                                     Steven Kenneth Staley - 10

hallucinations and believed an “electric polygraph” transmitted thoughts into his head that

were not his own. The report indicated that, as of 2011, treatment providers doubled his

intake of Haldol and that, as of the time of the examination in 2012, his condition had

improved. He no longer heard voices or experienced other hallucinations and reported “a

positive mood state with no severe depressive symptoms.” He continued to experience

delusions of grandeur, but his thought processes appeared “concrete.” The report also

showed that appellant reported “being forced to take medication because he was told ‘a new

law says I have to take the medication’” and that if he refused “oral medication then he is

strapped down and injected.” Her report further indicated that animal studies have shown

that the use of Haldol caused a ten to twenty percent reduction in brain cortex volume after

eight weeks of use.

       In its ruling after both sides rested, the trial court, in accordance with the opinions of

the two experts, found that appellant was competent to be executed, but only because of the

effects of the forcible medication. The trial court stated,

       When [appellant] is on Haldol and Zoloft, that his understanding is equivalent
       to competency, that he is competent, that if he—and I think both doctors have
       stated that if he is taken off this medication, that he could deteriorate and
       decompensate. But based upon the fact that he has been on this medication,
       that he is competent at this time. And that is both from the State’s expert, Dr.
       Price, and also the Defense’s expert, Dr. Compton. As such, the Court is going
       to make a finding that Mr. Staley is competent at this time. . . .

       The trial court scheduled appellant’s execution for May 2012. Appellant sought a stay

of execution in this Court, which we granted to address the disputes currently before us. Ex
                                                                      Steven Kenneth Staley - 11

parte Staley, No. WR-37,034-05, 2012 Tex. Crim. App. Unpub. LEXIS 482, at *3 (Tex.

Crim. App. May 14, 2012) (per curiam) (not designated for publication). We sustain

appellant’s seventh issue, which challenges the trial court’s authority to involuntarily

medicate him for purposes of making him competent to be executed.9 Having determined

that the trial court lacked the authority to order involuntary medication under these

circumstances, we sustain appellant’s first and second issues on the basis that, but for the

unauthorized involuntary-medication order, the evidence conclusively shows that appellant

is incompetent to be executed.10 We do not reach any of appellant’s constitutional challenges

that may be involved in those issues, nor his remaining issues that contend that (1) the trial




9
       Appellant presents this challenge in issue seven:

       7. The trial court’s April 11, 2006 [involuntary-medication] order exceeds the
       district court’s jurisdiction under Article 46.05 of the Texas Code of Criminal
       Procedure.
10
       Appellant presents this challenge in issues one and two:

       1. The court erred in finding that appellant was competent to be executed because
       he does not understand that he is to be executed and that execution is imminent and
       the reason he is being executed in violation of the eighth and fourteenth amendments
       to the U.S. Constitution.

       2. The court erred in finding that appellant was competent to be executed because
       he does not understand that he is to be executed and that execution is imminent and
       the reason he is being executed in violation of Section 13 of Article I of the Texas
       Constitution.
                                                                        Steven Kenneth Staley - 12

court’s involuntary-medication order violates the federal and state constitutions,11 and (2) that

he is severely insane to the point that he is functionally mentally retarded and his execution,

therefore, would violate the federal and state constitutions.12

II. This Court Has Jurisdiction Over the Appeal From the Trial Court’s Finding of



11
       Appellant presents this challenge in issues five, six, eight, and nine:

       5. Appellant’s continued treatment with Haloperidol to make him competent to be
       executed violates the prohibition against cruel and unusual punishment under the
       eighth and fourteenth amendments to the U.S. Constitution because it is causing
       irreparable damage to his brain by causing a reduction in brain cortex volume.

       6. Appellant’s continued treatment with Haloperidol to make him competent to be
       executed violates the prohibition against cruel and unusual punishment under Article
       I, Section 13 of the Texas Constitution because it is causing irreparable damage to
       his brain by causing a reduction in brain cortex volume.

       8. Forcible medication for the purpose of rendering an inmate competent for
       execution violates the prohibition against cruel and unusual punishment under the
       eighth and fourteenth amendments to the U.S. Constitution.

       9. Forcible medication for the purpose of rendering an inmate competent for
       execution violates the prohibition against cruel and unusual punishment under Article
       I, Section 13 of the Texas Constitution.
12
       Appellant presents this challenge in issues three and four:

       3. Appellant’s execution would violate the prohibition against cruel and unusual
       punishment under the eighth and fourteenth amendments to the U.S. Constitution
       because he is severely insane to the point where he is functionally mentally retarded
       and to execute him would violate the prohibition against cruel and unusual
       punishment contained in the eighth and fourteenth amendments to the U.S.
       Constitution.

       4. Appellant’s execution would violate the prohibition against cruel and unusual
       punishment under Art. I, § 13 of the Texas Constitution because he is severely insane
       to the point where he is functionally mentally retarded and to execute him would
       violate the prohibition against cruel and unusual punishment contained in Section 13
       of Article I of the Texas Constitution.
                                                                      Steven Kenneth Staley - 13

       Competency Under the Current Competency-To-Be-Executed Statute 13

       As an initial matter, we determine that this Court has jurisdiction to review this

competency appeal because the the current competency-to-be-executed statute applies to this

case. That statute, unlike its predecessor, expressly permits appeal of any competency

determination to this Court. See T EX. C ODE C RIM. P ROC. art. 46.05(l). We further conclude

that we have jurisdiction to review the involuntary-medication order because it is intertwined

with the trial court’s finding that appellant is competent. We explain these conclusions in

more detail below.

       A. Current Statute Applies to This Case

       The parties dispute whether the former or current competency-to-be-executed statute

applies to this case. That distinction is relevant here because under the former competency-

to-be-executed statute, only a finding of incompetence could be appealed. See former T EX.

C ODE C RIM. P ROC. art. 46.05(k) (Vernon 2005); Ex parte Caldwell, 58 S.W.3d 127, 130

(Tex. Crim. App. 2000). The State argues that the former version of the statute applies and

that appellant is thus not permitted to challenge the trial court’s finding that he is competent.

Appellant disagrees and urges that the current version of the statute should apply to his case.

       In Ex parte Caldwell, this Court dismissed an inmate’s appeal of the trial court’s

competency finding because we determined that the former competency-to-be-executed


13
       Although neither party directly challenges this Court’s jurisdiction to address appellant’s
appeal from the trial court’s competency determination, a court may always address jurisdictional
matters before reaching the merits of an appeal. See White v. State, 61 S.W.3d 424, 427 n.2 (Tex.
Crim. App. 2001).
                                                                       Steven Kenneth Staley - 14

statute did not permit review of “the finding that the defendant is competent to be executed.”

Caldwell, 58 S.W.3d at 130 (citing former T EX . C ODE C RIM. P ROC. art. 46.05(k) (Vernon

2005)). In reaching our conclusion, we relied on the plain terms of the former statute, which

authorized this Court to take subsequent action in a competency proceeding only upon the

trial court’s “finding by a preponderance of the evidence that the defendant is incompetent

to be executed.” See former T EX. C ODE C RIM. P ROC. art. 46.05(k). By contrast, the current

statute, which became effective on September 1, 2007, expressly authorizes this Court to

review a finding that a defendant is competent. See T EX. C ODE C RIM . P ROC. art. 46.05(l)

(statute amended by Act of May 23, 2007, 80th Leg., R.S., ch. 677, § 1, 2007 T EX. G EN.

L AWS 677 (H.B. 1545)).14




14
       In pertinent part, the current competency-to-be-executed statute states,

       (g) If the trial court does not determine that the defendant has made a substantial
       showing of incompetency, the court shall deny the motion and may set an execution
       date as otherwise provided by law.

       ....

       (k) The trial court shall determine whether . . . the defendant has established by a
       preponderance of the evidence that the defendant is incompetent to be executed. If
       the court makes a finding that the defendant is not incompetent to be executed, the
       court may set an execution date as otherwise provided by law.

       (l) Following the trial court’s determination under Subsection (k) and on motion of
       a party, the clerk shall send immediately to the court of criminal appeals in
       accordance with Section 8(d), the appropriate documents for the court’s review and
       entry of a judgment of whether to adopt the trial court’s order, findings, or
       recommendations issued under Subsection (g) or (k). . . .

TEX . CODE CRIM . PROC. art. 46.05 (g), (k), (l) (emphasis added).
                                                                      Steven Kenneth Staley - 15

       The State filed its motion and the trial court issued its competency finding in 2012,

long after the current statute became effective. Appellant points to that motion and trial

court’s finding as invoking the current statute. The State, however, suggests that the former

competency-to-be-executed statute should apply instead of the current statute because the

trial court’s first finding of incompetency was made prior to the effective date of the current

statute.

       The State’s 2012 motion asked the trial court to find appellant competent based on the

results of examinations that had been conducted under the competency-to-be-executed

statute’s requirement that the trial court order the periodic re-examination of appellant to

determine whether he remained incompetent. See T EX. C ODE C RIM. P ROC. art. 46.05(m);

former T EX. C ODE C RIM. P ROC. art. 46.05(k) (Vernon 2005). This requirement, present in

the former and current versions of the statute, is part of a trial court’s continued jurisdiction

over the matter of a defendant’s competency to be executed. See T EX. C ODE C RIM. P ROC. art.

46.05(b) (trial court “retains jurisdiction over motions filed by or for a defendant under this

article”); T EX. C ODE C RIM. P ROC. art. 43.141 (convicting court has continuing authority to

set execution date). This continued jurisdiction could last an extended period of time, from

the time that a defendant’s death sentence is imposed until his death by execution or natural

causes or until he obtains extraordinary relief from a writ of habeas corpus that reverses a

death sentence. In light of this extended post-conviction period, the Legislature specified

that the current statute would apply only to motions filed on or after September 1, 2007. The
                                                                        Steven Kenneth Staley - 16

legislative note to the amendment stated that the amendment

       applies only to a motion filed under Article 46.05, Code of Criminal
       Procedure, on or after the effective date of this Act. A motion filed under that
       article before the effective date of this Act is covered by the law in effect on
       the date the motion was filed, and the former law is continued in effect for that
       purpose.

Act of May 23, 2007, 80th Leg., R.S., ch. 677, at § 2. Here, because the State filed its motion

to find appellant competent in 2012, the current competency-to-be-executed statute applies

to the review of the trial court’s competency finding, and that statute permits this Court to

review the trial court’s order finding appellant competent.15

       Having determined that this Court has jurisdiction to review the trial court’s

competency order, we must next address whether this Court has jurisdiction to address

appellant’s complaint that his competence was “artificial” due to his involuntary medication.

       B. Involuntary-Medication Order is Intertwined with Trial Court’s
          Finding That Appellant Is Competent To Be Executed

       Appellant contends that the trial court erred by finding him competent to be executed

under the competency-to-be-executed statute because his competence has been achieved

artificially through court-ordered involuntary medication. Although it disputes the merits of




15
        Under Subsection (m), the competency-to-be-executed statute gives the trial court continuing
authority to periodically order that a defendant be reexamined by mental-health experts to determine
his competency, which the trial court did in this case. TEX . CODE CRIM . PROC. art. 46.05(m). In
2012, after experts had found that appellant was competent following these periodic examinations,
the State filed a motion under that subsection, and it is that motion that invokes the current
competency-to-be-executed statute. We do not construe the State’s previous motion for further
evaluation as initiating competency proceedings “on the defendant’s behalf” under Subsection (c)
of that statute. See id. at art. 46.05(c).
                                                                      Steven Kenneth Staley - 17

appellant’s claim, the State essentially concedes that this Court has jurisdiction to address

appellant’s argument that he is “artificially competent” because that argument “goes to the

heart of whether he is actually competent.” On the other hand, the State disputes that the

involuntary-medication order itself is reviewable under the competency-to-be-executed

statute because that statute limits the scope of this Court’s review to the narrow confines of

the trial court’s competency determination. The State urges that “[w]hether the trial court’s

medication order was appropriate, legally justified, or constitutional, is beyond the purview

of article 46.05.”

       We disagree with the State’s position and hold that we may properly review the trial

court’s involuntary-medication order within the scope of our competency-determination

review. For purposes of understanding the underlying proceedings, we briefly explain why

we have jurisdiction over the present appeal but did not have jurisdiction over an earlier

appeal from this involuntary-medication order. In 2006, this Court dismissed appellant’s

appeal from the involuntary-medication order because we determined that, under the prior

competency-to-be-executed statute, that order was a non-appealable, interlocutory order.

Staley I, 233 S.W.3d at 337; see former T EX. C ODE C RIM. P ROC. art. 46.05 (Vernon 2005).

In Staley I, this Court reasoned that in order for it to obtain jurisdiction over the appeal, the

appellant had to appeal a “judgment of guilt or other appealable order.” Id. at 338 n.4 (citing

T EX. R. A PP. P. 25.2(a)(2)). Appellant had not presented either. Rather, he challenged the

trial court’s medication order, which was a stand-alone order that was separate and distinct
                                                                     Steven Kenneth Staley - 18

from the trial court’s finding that he was incompetent. See id. Because the finding of

incompetency was in his favor, appellant could not present any appeal under the former

competency-to-be-executed statute. See id. at 338 n.5 (holding that involuntary-medication

order was unreviewable because “[n]either the withdrawal of an execution date nor a review

of a finding of incompetence” was at issue, interpreting former T EX. C ODE C RIM. P ROC. art.

46.05(k)).

       In contrast to Staley I, the present challenge to the trial court’s involuntary-medication

order comes to this Court as a challenge to the finding of competency under the current

competency-to-be-executed statute, which permits this type of appeal. See T EX. C ODE C RIM.

P ROC. art. 46.05(l) (permitting appeal to this Court from any competency determination). The

case before us is not merely an interlocutory appeal of a non-appealable order. Compare

Staley I, 233 S.W.3d at 338 n.4. Instead, the trial court’s ruling that appellant is competent

to be executed only because of his involuntary medication makes the trial court’s medication

order an inextricable part of its competency determination. Because the involuntary-

medication order was entered for the specific purpose of making appellant competent to be

executed, its validity is reviewable as a core element of this Court’s competency review. We

hold that this Court has jurisdiction to review (1) the trial court’s competency finding under

the competency-to-be-executed statute because the current statute applies to this case and (2)

the trial court’s involuntary-medication order because that order is intertwined with

appellant’s challenge that forcible medication has made him artificially competent. See
                                                                          Steven Kenneth Staley - 19

Eichelberger v. Eichelberger, 582 S.W.2d 395, 399 (Tex. 1979) (explaining that “implied

powers are those which can and ought to be implied from an express grant of power” and

finding appellate jurisdiction because no other mechanism existed to review lower court’s

decision).

                III. Trial Court Erred By Finding Appellant Competent
                    Following Court-Ordered Involuntary Medication

       As explained in more detail below, we conclude that the trial court lacked the

authority to order the involuntary medication of appellant and that the competency finding

must be reversed because that determination is wholly dependent on that unauthorized

involuntary medication of appellant.

       A. Trial Court Lacked Authority to Involuntarily Medicate Appellant
          Under the Evidence Presented

       In his seventh claim, appellant argues that the trial court lacked jurisdiction and

authority under the competency-to-be-executed statute to order him involuntarily

medicated.16 The State responds that the trial court’s order “is nothing but a vehicle for




16
         The Supreme Court has held that, under certain circumstances, the involuntary medication
of inmates may be constitutionally permissible. “‘[T]he Due Process Clause permits the State to
treat a [non-death-row] prison inmate who has a serious mental illness with antipsychotic drugs
against his will, if the inmate is dangerous to himself or others, and the treatment is in the inmate’s
medical interest.’” Sell v. United States, 539 U.S. 166, 178 (2003) (quoting Washington v. Harper,
494 U.S. 210, 227 (1990)). The Supreme Court has never addressed whether it would violate the
federal constitution to involuntarily medicate an inmate to make him competent to be executed, and
we do not reach that ultimate question in this case because that is a separate question from whether
a trial court has the authority to order involuntary medication.
                                                                          Steven Kenneth Staley - 20

enforcing its own judgment and sentence, and the mandate of” this Court, which falls within

a trial court’s general judicial power. We disagree with the State.

               1. Applicable Law for Trial Court’s Post-Conviction Power

       A trial court must derive its jurisdiction from either the Texas Constitution or

legislative enactments. State v. Holloway, 360 S.W.3d 480, 485 (Tex. Crim. App. 2012).

When a conviction has been affirmed on appeal and the mandate has issued, general

jurisdiction is not restored in the trial court. State v. Patrick, 86 S.W.3d 592, 594 (Tex. Crim.

App. 2002) (plurality op.).

       A trial court can obtain post-conviction jurisdiction over a case under many different

statutes, for example, to set the date of execution, conduct DNA testing, or, as here,

determine whether an inmate is competent to be executed. See T EX. C ODE C RIM. P ROC. arts.

43.141(b) (“If an original application is not timely filed under Article 11.071 . . . the

convicting court may set an execution date.”); 64.01(a-1) (authorizing convicting court to

hear motions for DNA testing); and 46.05(b) (“The trial court retains jurisdiction over

motions filed by or for a defendant under this article.”). These post-conviction statutes

define the scope of the trial court’s jurisdiction. See Holloway, 360 S.W.3d at 485.

Furthermore, a trial court may have jurisdiction over a matter, but no authority to act.17 Id.


17
       This Court recently explained the difference between a trial court’s jurisdiction and authority.
We stated,

       Jurisdiction is typically used to refer to the power of a court to hear a controversy and
       make decisions that are legally binding on the parties involved, also commonly
                                                                                          (continued...)
                                                                             Steven Kenneth Staley - 21

                2. Competency-To-Be-Executed Statute Does Not Authorize Trial Court
                to Order Involuntary Medication

        A plain reading of the competency-to-be-executed statute indicates that the trial court

lacked the authority to order appellant involuntarily medicated. See Boykin v. State, 818

S.W.2d 782, 785 (Tex. Crim. App. 1991). In relevant part, the competency-to-be-executed

statute provides that, after an execution is stayed on the basis of incompetency, “the trial

court shall periodically order that the defendant be reexamined by mental health experts to

determine whether the defendant is no longer incompetent to be executed.” T EX. C ODE C RIM.

P ROC. art. 46.05(m). Aside from the provision permitting re-examination, the statute does

not authorize the trial court to take any other action with respect to a defendant found

incompetent under that statute. See id.

        The State argues that the trial court had inherent or implied authority to enter the

medication order as necessary to carrying out the sentence. In support, it cites Kelley v. State

for the proposition that judicial power under the Texas Constitution includes the power to

execute the judgment. 676 S.W.2d 104, 107 (Tex. Crim. App. 1984) (determining that civil




(...continued)
         referred to as subject-matter jurisdiction. Jurisdiction, then, is vested in the actual
         judicial body, the court. Authority, on the other hand, may be used to refer to the
         power of an individual—the judge who presides over the court—to act under that
         grant of jurisdiction. A lack of authority, therefore, is not always co-extensive with
         a lack of jurisdiction; a judge’s lack of authority to act in a particular manner will not
         necessarily call into doubt the court’s jurisdiction over the particular case.

State v. Holloway, 360 S.W.3d 480, 485 (Tex. Crim. App. 2012) (internal citations and quotation
marks omitted).
                                                                          Steven Kenneth Staley - 22

statute (1) did not create “courts” with independent jurisdiction, but rather permitted

magistrates to assist district-court judges in certain limited matters, and (2) was not

unconstitutional). As noted in Kelley, this Court has long construed “‘[j]udicial power’ as

envisioned by the Constitution [to] embrace[] ‘(1) The power to hear facts, (2) the power to

decide the issues of fact made by the pleadings, (3) the power to decide the questions of law

involved, (4) the power to enter a judgment on the facts found in accordance with the law as

determined by the court, (5) and the power to execute the judgment or sentence.’” Id.

(quoting Morrow v. Corbin, 62 S.W.2d 641, 645 (Tex. 1933)).

       We disagree with the State that the trial court’s general power under the Texas

Constitution authorized the court’s order in this case.            With respect to a defendant’s

competency to be executed, the Legislature has limited the trial court’s general power to

execute its judgment by specifically prohibiting the execution of an incompetent inmate. See

T EX. C ODE C RIM. P ROC. art. 46.05. Aside from permitting it to periodically reexamine an

incompetent inmate, the Legislature did not authorize the trial court to take any collateral

steps to restore the inmate to competency. See id.18



18
        In his dissenting opinion, Judge Meyers suggests that the involuntary medication of appellant
is authorized by the Texas Constitution. See TEX . CONST . Art. V, § 8; Kelley v. State, 676 S.W.2d
104, 107 (Tex. Crim. App. 1984) (stating that constitution empowers district court to “execute the
judgment or sentence”). The jurisdiction or authority to execute a sentence, however, is not unlimited
and cannot be invoked as the basis to permit a court to take any collateral act to ensure that its
ultimate sentence is carried out. For example, a district court has the authority to set an execution
date, but the Code of Criminal Procedure limits the circumstances under which the execution date
may be withdrawn. See TEX . CODE CRIM . PROC. art. 43.141. And a district court lacks the authority
to specify the procedures by which an inmate will be executed; that decision is left to the director
                                                                                         (continued...)
                                                                          Steven Kenneth Staley - 23

         This Court has addressed the limits to post-conviction jurisdiction in State v.

Holloway, 360 S.W.3d at 485. In that case, we examined whether Chapter 64 of the Texas

Code of Criminal Procedure, which governs post-conviction motions for DNA testing and

to which we refer as the “DNA statute,” authorized the trial court to grant Holloway a new

trial after DNA testing produced exculpatory results. Id. at 482 (analyzing T EX. C ODE C RIM.

P ROC. ch. 64). Holding that it did not, we first noted that, “on its face,” the DNA statute did

not expressly authorize the trial court to grant a new trial or to take any remedial action. Id.

at 486-87. We observed that “the only substantive order that Chapter 64 contemplates is the

one that grants or denies the movant’s request for DNA testing.” Id. at 486. Because the

statute, by its plain language, authorized the trial court only to make a finding as to whether

a defendant is entitled to testing, we concluded that the language “expresses the evident




(...continued)
of correctional institutions. See id. at art. 43.14 (execution procedure “determined and supervised
by” director of correctional institutions division). Although the Texas Constitution gives it
jurisdiction to execute a sentence, the district court plainly does not have unlimited authority in
deciding all the parameters for carrying out a sentence of death.
         Similarly, under the Texas Constitution, this Court has jurisdiction to issue post-conviction
writs in criminal cases, but our power to grant subsequent writs has been limited by the Legislature
in such a way as to preclude our consideration of those writs under certain circumstances. See Ex
parte Sledge, 391 S.W.3d 104, 109 (Tex. Crim. App. 2013) (stating that applicant raising
procedurally barred claim on habeas corpus “cannot call upon [this Court’s] general authority” to
grant post-conviction relief in light of “plain limitations” upon that power) (citing TEX . CODE CRIM .
PROC. art. 11.07, § 4(a)). We have held that this Court’s general grant of authority in the Texas
Constitution may be limited or defined by the parameters set forth by the Texas Legislature. See id.
at 108, 109 n.24 (citing “legislative prerogative” to regulate post-conviction habeas corpus
procedure). Even if we assume that the trial court had the general jurisdiction to see that appellant’s
death sentence was carried out, it lacked the authority to order the collateral act that would transform
an otherwise unconstitutional event—the execution of an incompetent person—into a constitutional
one—the execution of a person who is competent because of involuntary medication.
                                                                      Steven Kenneth Staley - 24

legislative purpose” of the DNA statute, which was to provide a defendant “an avenue for

post-conviction forensic DNA testing—and no more.” Id. at 487.

       Holloway nevertheless argued, as the State does in the present case, that the trial court

had “implicit authority” to order a new trial “because it was in furtherance of the

‘jurisdictional purpose’” of the DNA statute. Id. at 487-88. We rejected this contention,

noting that the “jurisdictional purpose” of that statute was “simply to provide deserving

applicants with a mechanism for post-conviction DNA testing and a favorable finding on the

record if justified by that testing; it does not include any other remedy or form of relief in the

convicting court.” Id. at 488. We concluded that permitting the trial court to take that extra-

statutory action would conflict with the plainly expressed jurisdictional purpose of the DNA

statute. Id.; see Wolfe v. State, 120 S.W.3d 368, 372 (Tex. Crim. App. 2003) (observing that

trial court’s jurisdiction and authority under DNA statute limited to that prescribed by that

statute).

            Here, similarly, we conclude that the trial court’s involuntary-medication order was

not authorized by the competency-to-be-executed statute. See T EX. C ODE C RIM. P ROC. art.

46.05. The language of that statute evinces its purpose of enabling defendants to seek a

determination as to their competency to be executed and to obtain a stay of execution upon

a finding of incompetency. See id. Nothing in the statute permits the trial court, once it has

found a defendant incompetent, to take any action other than ordering periodic reevaluation

of the defendant. See id. The statutory language plainly and strictly limits the trial court’s
                                                                          Steven Kenneth Staley - 25

authority in competency-to-be-executed proceedings, and application of that language does

not yield an absurd result. See Boykin, 818 S.W.2d at 785-86. In light of the plain language

expressly limiting the trial court’s role to ordering periodic reevaluations of an individual

who has been found incompetent and to determining whether he is competent, the trial

court’s extraordinary measures aimed at restoring appellant’s competency through his

involuntary medication cannot be characterized as mere actions in furtherance of the

statute’s jurisdictional purpose. See Holloway, 360 S.W.3d at 488.19

       We cannot conclude that ordering treatment of any kind for the specific objective of

restoring an inmate to competency merely furthers the court’s ability to evaluate and make

a determination regarding his competency as permitted by the competency-to-be-executed

statute. See T EX. C ODE C RIM. P ROC. art. 46.05(m). The trial court’s order in this case,

therefore, was not implicitly authorized under the statute. Id.




19
         Because the language is plain, we do not resort to an extratextual analysis. See Boykin v.
State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). We note, however, that the Legislature has
clearly set forth the parameters for involuntary medication of people in other contexts. In the statute
governing competency-to-stand-trial proceedings, for example, the Legislature detailed procedures
for restoring a defendant’s competency, which include involuntary medication. See TEX . CODE CRIM .
PROC. arts. 46B.073 & 46B.086. The involuntary-medication provision specifically authorizes the
State to file a motion to compel, and the trial court to order, involuntary medication under certain
circumstances and if certain standards are met. Id. at art. 46B.086. By contrast, nothing in the
competency-to-be-executed statute refers to or incorporates these procedures or criteria or otherwise
authorizes such action. See id. at art. 46.05. The absence of the authorizing language in the
competency-to-be-executed statute as compared to the presence of the authorizing language in the
competency-to-stand-trial statute suggests that the Legislature knows how to authorize the
involuntary medication of a person and opted not to authorize that action in this case.
                                                                        Steven Kenneth Staley - 26

               3. No Other Statute Permits Post-Conviction Judicial Authorization of
               Involuntary Medication of Inmates

       Although Texas permits the involuntary medication of people in limited

circumstances, the record does not show that those circumstances existed here. Specifically,

prison regulations permit the involuntary medication of inmates in limited circumstances.

And, in limited circumstances, courts may order the involuntary medication of people who

are involuntarily committed or incompetent and awaiting trial. To the extent that they might

be applicable to this case, neither of those procedural vehicles was invoked here.

       In Texas, inmates may be involuntarily medicated following a limited, non-judicial

administrative process set forth by the Texas Correctional Managed Health Care Committee.

See Texas Correctional Managed Health Care Policy Manual, § I-67.1, Compelled

Psychoactive Medication For Mental Illness (October 15, 2012), available at

http://www.cmhcc.state.tx.us/CMHC_Policy_Manual/I/I-67.1%20(1012).pdf.20 In a non-

emergency situation, an inmate may be compelled to take psychoactive medication when

failure to do so “[i]s likely to result in continued suffering from severe and abnormal mental,

emotional and physical distress or deterioration of the patient’s ability to function

independently.” Id. at 3, § I-B. This process does not involve an adversarial hearing before


20
       Some states permit penitentiaries to institute procedures for involuntarily medicating inmates
pursuant to a determination by a panel of medical professionals. See Harper, 494 U.S. at 215-16
(Washington state policy allowed prison authorities to administer medication to inmates
involuntarily); Sullivan v. Flannigan, 8 F.3d 591, 597 (7th Cir. 1993) (Illinois has two-person
“treatment review committee” composed of physician and prison administrator); see also 28 C.F.R.
§ 549.46 (federal law requiring administrative proceeding prior to involuntary medication of inmate).
Other states require a court order. See Commonwealth v. Sam, 952 A.2d 565, 567 (Pa. 2008).
                                                                   Steven Kenneth Staley - 27

a judge, but rather requires an administrative hearing before a “nontreating,

psychiatrist/psychiatric mid-level practitioner.” Id. at 3, § V-D. This administrative process

was not implemented in the present case.

       Furthermore, although trial courts may forcibly medicate patients receiving inpatient

mental-health services, that provision does not apply to inmates facing execution. See T EX.

H EALTH & S AFETY C ODE, Title 7, Subtitle C, Ch. 574 (“Court-Ordered Mental Health

Services”); id. at subchapter G (“Administration of Medication to Patient Under Court-

Ordered Mental Health Services”). Specifically, Section 574.106 sets forth the conditions

under which a court may order administration of psychoactive medication. Id. at § 574.106.

That provision limits such judicial authorization to a defendant who is, at the time, under a

court order to receive inpatient mental-health services or who is receiving those services

while awaiting trial after being found incompetent to stand trial. Id.; see also T EX. C ODE

C RIM. P ROC. arts. 46B.073 & 46B.086. This provision does not appear to be applicable to

individuals sentenced to death and was not invoked as the basis for the involuntary

medication in this case.

       Because appellant was involuntarily medicated pursuant to the trial court’s order

under the competency-to-be-executed statute, we limit our holding to that circumstance and

do not address the potential consequences of involuntary medication through a different

procedure. We hold that the trial court exceeded its authority by ordering the involuntary
                                                                          Steven Kenneth Staley - 28

medication of appellant under the competency-to-be-executed statute, and, therefore, reverse

that order. See T EX. C ODE C RIM. P ROC. art. 46.05. We sustain appellant’s seventh claim.21

       B. Evidence Conclusively Establishes Appellant’s Incompetence But For
       Involuntary Medication

       As we explain in more detail below, we conclude that, but for his involuntary

medication achieved through the trial court’s unauthorized order, appellant is incompetent

to be executed. We, therefore, agree with appellant’s first and second grounds, in which he

contends that the evidence does not support the trial court’s finding that he is competent to

be executed as defined by the competency-to-be-executed statute or the State or federal

constitutions. See T EX. C ODE C RIM. P ROC. art. 46.05(h); Green v. State, 374 S.W.3d 434, 440

(Tex. Crim. App. 2012) (competency-to-be-executed statute codifies constitutional

standards).

       The trial court found, and the record shows, that the sole basis for the trial court’s

finding that appellant was competent was due to his involuntary medication.22 Dr. Price

explained that appellant is asymptomatic and competent so long as he is medicated. As noted

by the State, Dr. Price testified that he did not regard “medically aided competence” and


21
       We further note that, although it cited appellant’s best medical interests in support of forcible
medication, the trial court’s order was not authorized by statute. As discussed above, if involuntary
medication is in a prisoner’s best medical interest, prison regulations permit it under certain
circumstances.
22
       In its order, the trial court found that, “[b]ecause without medication the prisoner is likely to
remain incompetent, the medication is not only the least intrusive method, but apparently the only
method that would further the state’s interest.”
                                                                     Steven Kenneth Staley - 29

“everyday competence” as distinguishable because the “cause of the competence is not a part

of . . . an [expert’s] opinion that someone is competent or not.” Dr. Compton submitted an

affidavit in which she concluded that appellant “appears to be currently competent. However,

there is a reasonable degree of psychological certainty that without forced medications he

would not be competent.” Her affidavit noted several instances in which appellant refused

medication and had to be forcibly medicated. After hearing the evidence, the trial court noted

that “both doctors have stated that if he is taken off this medication, he could deteriorate and

decompensate. But based upon the fact that he had been on this medication, that he is

competent at this time.”

       In light of the record, we conclude that, but for the trial court’s impermissible

involuntary-medication order, the evidence does not support the trial court’s determination

that appellant is competent to be executed under the competency-to-be-executed statute. The

State and the dissenting opinion by Presiding Judge Keller, however, suggest that the

underlying reasons for an inmate’s competency are immaterial to the sole question of whether

he is competent under the competency-to-be-executed statute. This argument is unpersuasive

because it mistakenly suggests that this court should apply the standard for traditional

sufficiency-of-the-evidence review rather than the more analogous standard that this Court

has applied when an unconstitutional act by the trial court has transformed the evidence in
                                                                           Steven Kenneth Staley - 30

the case.23 Here, the latter standard applies because the trial court’s unauthorized order was

the sole cause of the transformation of the evidence from evidence supporting a finding of

incompetence into evidence supporting a finding of competence.

        The evidence conclusively shows that medication was critical to restoring appellant’s

competency and that, but for the involuntary-medication order, appellant would not have

been compliant in taking his medication as prescribed. We, therefore, vacate the trial court’s

involuntary-medication order and its order finding appellant competent to be executed and

remand the case to the trial court for periodic reevaluation of appellant under Article

46.05(m). T EX. C ODE C RIM. P ROC. art. 46.05(m).



23
        The procedural posture of this case makes a traditional review for sufficiency of the evidence
inapplicable. See Jackson v. Virginia, 443 U.S. 307, 324 (1979) (holding that appellate court
reviewing conviction must find that rational trier of fact could have found essential elements of
offense beyond a reasonable doubt). It is true, as Presiding Judge Keller points out, that in traditional
sufficiency review, we review all the record evidence regardless of whether that evidence was
properly admitted. See Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013). But here we
are not faced with mere questions of properly or improperly admitted evidence. Rather, we are
confronted with a situation in which the trial court, through an unauthorized order, has altogether
altered the state of the evidence. By ordering appellant medicated, the trial court caused to come into
existence the sole evidence of appellant’s competency. But for the unauthorized order, such evidence
would not exist. The resulting competency determination must be reviewed in light of the invalid
basis upon which it rests.
        Because the trial court exceeded its authority by ordering appellant medicated, the trial
court’s determination that appellant is competent can stand only if it is wholly independent of the
unauthorized order. It is not. See, e.g., Dansby v. State, 398 S.W.3d 233, 242 (Tex. Crim. App. 2013)
(holding that district court’s revocation of community supervision on basis of discharge from sex
offender treatment program must have been premised on grounds “wholly independent of” any
constitutional violation). To uphold the competency determination in spite of our acknowledgment
that the underlying medication order is invalid would represent a sanctioning of the trial court’s
unauthorized action, which was undertaken for the purpose of circumventing the constitutional
prohibition on the execution of incompetent persons. This Court will not permit the execution of an
incompetent inmate who has become competent solely through an unauthorized order.
                                                                    Steven Kenneth Staley - 31

                                       IV. Conclusion

       We hold that the evidence conclusively shows that appellant’s competency to be

executed was achieved solely through the involuntary medication, which the trial court had

no authority to order under the competency-to-be-executed statute. The finding that appellant

is competent must be reversed for lack of any evidentiary support. We do not reach the

question of whether the federal or Texas constitution would disallow the execution of a

prisoner who has been involuntarily medicated pursuant to a proper order. We do not reach

appellant’s claims that challenge the constitutionality of achieving competency by way of

forcible medication or his claim that he is functionally mentally retarded. With respect to his

statutory appeal, we sustain appellant’s first, second, and seventh claims and dismiss his

third, fourth, fifth, sixth, eighth, and ninth claims. We vacate the trial court’s order of

involuntary medication and its order finding appellant competent to be executed. We remand

the case to that court for proceedings consistent with this opinion.




Delivered: September 11, 2013

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