WACO, Texas (KWTX) – An attorney for the former McGregor man found incompetent to stand trial in the 2022 shooting deaths of five people is seeking to transfer his case to the federal system because he says his client’s due process rights are being violated by the long wait for a state mental hospital bed to become available.

While Clay Thomas acknowledges his request to remove Nicolas Jaimes-Hernandez’s capital murder cases from 19th State District Court to Waco’s U.S. District Court is rare, he said Monday that the motion is not without precedent.

Thomas said overcrowding in state mental health facilities, especially maximum-security facilities, has caused a “breathtakingly lengthy” waiting list for open beds that can stretch to two years and that his client is languishing in the McLennan County jail while his physical and mental states are deteriorating.

“If we move into federal court, then the (federal) Bureau of Prisons takes it over and then they will send him to a federal medical facility,” Thomas said. “On the federal end, they don’t have to sit around and wait and they can get help much quicker, most likely. Federal courts have ruled waiting more than eight months is a violation of due process, and the idea is they would get him into federal court and sent to the Bureau of Prisons to some place that could help him. That is typically within four months, probably even sooner.”

Judge Thomas West of 19th State District Court found Jaimes-Hernandez incompetent to stand trial on Nov. 26, 2024, and the undocumented Mexican citizen, who has been in the McLennan County Jail 873 days, has been waiting to be transferred to one of four maximum-security state mental hospitals.

There are a combined total of 462 beds for adults and 32 beds for juveniles at the state’s four maximum-security facilities, according to Thomas’ motion.

Jaimes-Hernandez, 37, who remains paralyzed from the waist down after being shot by police in the Sept. 29, 2022, incident, is charged with capital murder in the deaths of Monica Aviles and her teenage children, Miguel Avila and Natalie Avila.

Jaimes-Hernandez, who is also being held on an immigration detainer, was living with the 38-year-old Aviles on South Monroe Street in McGregor. He has lived in Texas about 20 years and worked as a house painter, Thomas said.

He also is charged with capital murder in the shooting deaths Lori Aviles and her 20-year-old daughter, Natalie, who lived next door.

Jaimes-Hernandez also is charged with two counts of aggravated assault in the drive-by shooting of Jeronimo Olvera Jr. and the attempted shooting of Jeronimo Olvera Sr. at a home in the 800 block of Monroe that same day.

McLennan County District Attorney Josh Tetens said his office will oppose the request and called the removal motion “not only ironically untimely, but unnecessary.”

“The defendant in this case is going to receive the same mental health care any other defendant is granted under the law,” Tetens said Monday. “The defendant should remain in state custody where he will receive treatment, competency restoration, and we expect, be tried.”

Thomas acknowledges in his motion that federal law provides that a notice of removal in a criminal case must be filed no later than 30 days after a defendant receives a copy of the indictment against him “unless good cause is shown.” His motion states that “because of the extraordinary circumstances,” enforcing the timeliness rule would prejudice his rights.

Jaimes-Hernandez spent about three weeks in the hospital and weighed about 170 pounds when released to jail. His last recorded weight at the jail was 123 pounds, Thomas’ motion to transfer alleges.

“He has been locked up in a 5-by-7 cell with concrete walls and a steel door with no human interaction for more than two years,” Thomas said. “You can imagine someone there – no matter what they have done – in a room like that, confined in a wheelchair and confined to essentially a box for two years. What do you think that is going to do to the capabilities of him ever becoming competent?”

Longtime Waco psychologist Lee Carter found Jaimes-Hernandez, who is said to speak limited English, incompetent because he determined he doesn’t have a rational understanding of the charges against him; can’t reasonably confer with his attorney or assist in his defense; can’t exhibit appropriate behavior; and lacks the capacity to testify in his own behalf.

“Mr. Jaimes has a disorder that adversely affects his emotional presentation and thought patterns,” Carter wrote in his report to the court. “He is heavily paranoid, mentally confused, delusional, and combative. His disorder is treatable, but compliance is an obvious concern. Mr. Jaimes does not realize he is mentally ill and refuses to comply with treatment. His medical needs and the depth of his disturbance are sufficiently advanced that he cannot participate in a community-based competence restoration program. Inpatient care in a secure hospital setting is required.”

Thomas said seeing Jaimes-Hernandez’s condition continue to deteriorate during a recent jail visit “really bothered me deeply.” He said besides his concerns about due process violations, his current confinement situation borders on 8th Amendment violations against cruel and unusual punishment.

“Dr. Carter’s assessment, while proper for the purpose of a competency examination, fails to address the continuing mental and physical health issues Mr. Jaimes-Hernandez experiences while remaining on a long and crowded wait list,” Thomas wrote in the motion to transfer. “Mr. Jaimes-Hernandez, as a matter of course, refuses to utilize a hand-held urinal to void his bladder, choosing instead to urinate in his jail uniform. Additionally, he defecates in that jail uniform at will. As a result, he is subjected to forced medical showers to alleviate the filth accumulated in a jail uniform that must sometimes be physically cut from his body.”

Thomas rejects the notion that Jaimes-Hernandez is faking his condition to escape a possible death sentence.

“I don’t buy that he is malingering. That is a good thing for everyone to say because it gives them an excuse for it to be over,” Thomas said. “The reality is that no person in any sort of right mind would go through all of that and be able to keep up that kind of behavior for that length of time. Someone might be able to keep it up for a few weeks or even months, but not for two years.”

No hearing date has been set to hear the motion, which was filed electronically over the weekend.

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