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Houston Criminal Attorney Texas Penal Code 8.08 Lack of capacity/mental illness

Houston Criminal Attorney Texas Penal Code 8.08 Lack of capacity/mental illness



Today, we're discussing Texas Penal Code 8.08, which pertains to the lack of capacity for a child. Let's take a closer look at the statute, and we'll go over some of its highlights. 8.08 comes right after 8.07, which may not be surprising. However, 8.07 addresses age affecting criminal responsibility. It specifically mentions two provisions. A person may not be prosecuted for or convicted of any offense committed when younger than 15 years of age, except for a misdemeanor punishable by fine only (subsection A4). Additionally, subsection A5 covers violations of penal ordinances of political subdivisions, such as traffic tickets. In these cases, criminal responsibility still applies, for instance, for speeding.

Now, regarding 8.08, when examining these matters, this is what we should consider. Subsection A for 8.08 states that on motion by the state, the defendant, or the defense attorney, or a person standing in parental relation to the defendant, or on the court's own motion, a court with jurisdiction of an offense described by section A4 or A5 shall determine whether probable cause exists to believe that a child, including a child with a mental illness or developmental disability, either lacks the capacity to understand the proceedings in criminal court or to assist in their own defense and is unfit to proceed, or lacks substantial capacity either to appreciate the wrongfulness of their own conduct or to conform their conduct to the requirements of the law.


If the court determines that probable cause exists for a finding under Section A, after providing notice to the state, the court may dismiss the complaint. The dismissal of the complaint under subsection F may be appealed as provided by 44.01 of the criminal procedure. Appeal under 44.01 is rare, especially for a Class C level offense, particularly when there's potential for a mental disability.


So, what does all this mean in plain English? It means that if you're a 14-year-old child (because it has to be less than 15), and you have a mental illness or developmental disability, you'll be treated similarly to an insanity defense. However, in the insanity defense, the burden of proof lies with the defendant. They must produce evidence showing that they may be mentally ill or don't understand the wrongfulness of their conduct, following a modified M'Naghten test. This differs from an irresistible impulse version of the insanity defense found in some states. In Texas, this modified M'Naghten test asserts that you either don't appreciate the wrongfulness of your conduct or lack the ability to conform your conduct to the requirements of the law. The key difference lies in the fact that if probable cause for this exists, the judge can dismiss the case, a much lower burden compared to the proof required in a regular adult criminal case. Insanity in such cases would need proof from the defense by a preponderance of evidence, convincing the jury of the defendant's insanity. However, in Texas Penal Code 8.08, the judge's belief in probable cause suffices, applicable only in Class C cases against minors. It might be challenging to find a suitable application for this, but for legal enthusiasts, this provision offers an intriguing insight into the law, presenting a special insanity defense for minors in Class C cases in Texas. (Texas Penal Code 8.08)

Sec. 8.08. CHILD WITH MENTAL ILLNESS, DISABILITY, OR LACK OF CAPACITY. (a) On motion by the state, the defendant, or a person standing in parental relation to the defendant, or on the court's own motion, a court with jurisdiction of an offense described by Section 8.07(a)(4) or (5) shall determine whether probable cause exists to believe that a child, including a child with a mental illness or developmental disability:(1) lacks the capacity to understand the proceedings in criminal court or to assist in the child's own defense and is unfit to proceed; or(2) lacks substantial capacity either to appreciate the wrongfulness of the child's own conduct or to conform the child's conduct to the requirement of the law.(b) If the court determines that probable cause exists for a finding under Subsection (a), after providing notice to the state, the court may dismiss the complaint.(c) A dismissal of a complaint under Subsection (b) may be appealed as provided by Article 44.01, Code of Criminal Procedure. Text of subsection effective until January 01, 2025(d) In this section, "child" has the meaning assigned by Article 45.058(h), Code of Criminal Procedure. Text of subsection effective on January 01, 2025(d) In this section, "child" has the meaning assigned by Article 45A.453(a), Code of Criminal Procedure. Added by Acts 2013, 83rd Leg., R.S., Ch. 1407 (S.B. 393), Sec. 18, eff. September 1, 2013.Amended by: Acts 2023, 88th Leg., R.S., Ch. 765 (H.B. 4504), Sec. 2.154, eff. January 1, 2025

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