Page 33 - Juvenile Practice is not Child's Play

persons who are found to be unfit (incompetent) to proceed because of mental health illness and those who are

found to be intellectually disabled are treated under the law, and you should carefully study the relevant Family
Code sections for these differences. If your client is found to be unfit to proceed because of a mental health
illness, your client may avoid commitment to a hospital setting if the court determines that they can be

adequately treated in an alternative care setting. TFC § 55.33(a)(2). You should be seeking alternative
treatments in your client’s community to present to the court in order to keep your client from being
committed to a hospital, unless absolutely necessary (danger to self).

7. Lack of Responsibility for Conduct (The Insanity Defense)
In Texas, the relevant inquiry to determine lack of responsibility for conduct is: At the time of the alleged
conduct, did the child, as a result of mental health illness or intellectual disability, lack substantial capacity to

either appreciate the wrongfulness of their conduct or to conform their conduct to the requirements of the
law? TFC § 55.51(a). Factors that might suggest referral for evaluation are:
• Age, in particular for younger adolescents;

• Limited intellectual functioning;
• History of poor academic achievement;
• History of emotional/behavioral problems; and
• Third-party accounts alleging unusual/bizarre/disorganized behavior by your client at or around the

time of the offense.
If you pursue an insanity defense, you should carefully read and review TFC §§ 55.51-55.61 and the other
Family Code provisions and Texas Health & Safety Code provisions to which the Family Code cites. You

should know that the test for lack of responsibility for conduct (insanity) in juvenile court is broader than in
adult court, where the question of whether the defendant lacked the capacity to conform their conduct to the
requirements of the law is not part of the insanity inquiry. Also, if your client is pursuing this defense, find a
reputable doctor (psychologist or psychiatrist) as quickly as you can and have that individual immediately

interview your client. Have the interview videotaped if you can, especially if your client is exhibiting signs of
psychosis. Your client may be given medication that will alleviate the symptoms of their mental health illness
soon after they are admitted to detention. The symptoms of your client’s mental health illness need to be
preserved as evidence for the jury before this medication takes effect. Finally, be aware that some judges do

not realize a verdict that the child is not responsible for their conduct is not an automatic “get out of jail free”
card. The verdict is followed by a hearing to determine whether your client’s lack of responsibility is the result
of mental health illness or intellectual disability. TFC § 55.52. If the court determines that your client’s lack of
responsibility is the result of mental health illness or intellectual disability, the court will direct your client to

treatment, either through commitment, placement in a private psychiatric facility, or, if appropriate, treatment
in an alternative setting.