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Insanity / Incompetence to Stand Trial

Lawyer in Houston for Incompetency or Insanity Claims

When a person has been charged with committing a criminal offense in Texas, the prosecution frequently must prove that the alleged offender knowingly broke the law. There are certain occasions in which the people who have been arrested may have lacked the actual criminal intent because of a mental illness.

Attempts to use “insanity” as an affirmative defense against criminal charges used to require prosecutors to prove alleged offenders were actually sane, but years of legal reforms have essentially placed the burden on defense lawyers to now prove their clients suffer from an actual mental illness. Professional evaluations are needed to prove that an alleged offender was incapable of distinguishing between right and wrong or that he or she is incompetent to stand trial because of a mental condition.

Use of Insanity Defense in Houston Criminal Cases

If you or your loved one are facing criminal charges in Southeast Texas despite a lack of clear criminal intent, it is in your best interest to immediately seek the help of extremely knowledgeable legal counsel. Horak Law provides legal assistance in these complicated matters for clients all over Liberty County, Harris County, Montgomery County, Brazoria County, Fort Bend County, Galveston County, and Waller County.

Harris County criminal attorney Matt Horak has more than a dozen years of experience with all sorts of legal defenses, and his previous role as a former Assistant District Attorney for Harris County also helps his clients anticipate how prosecutors will respond to insanity or incompetency claims. He can review your case and help you understand all of your legal options when you call our firm at (713) 225-8000 or toll-free at (800) 225-8009 to schedule a free, confidential consultation.


Harris County Insanity / Incompetence to Stand Trial Overview


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Incompetency Issues in Texas

Title 1, Chapter 46B of the Texas Code of Criminal Procedure establishes many of the guidelines regarding the competency of an alleged offender to stand trial. Under Texas Code of Criminal Procedure § 46B.003, an alleged offender is presumed competent to stand trial unless he or she is proved incompetent by a preponderance of the evidence that shows he or she does not have:

  • Sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or
  • A rational as well as factual understanding of the proceedings against the person.

When it has been suggested that an alleged offender could be incompetent to stand trial, the court may then appoint one or more disinterested experts to examine the alleged offender. The expert will also report to the court on the competency or incompetency of the alleged offender. The expert might be called into the courtroom to testify on the issue of competency or incompetency of the alleged offender at any trial or hearing involving that issue.

The court can appoint qualified psychiatrists or psychologists employed by the local mental health authority or local mental retardation authority as experts.

In order to qualify as an expert, a psychiatrist or psychologist must be a physician licensed in Texas or a psychologist licensed in Texas who has a doctoral degree in psychology.

The expert must also have the following certification or training:

  • As appropriate, certification by the American Board of Psychiatry and Neurology with added or special qualifications in forensic psychiatry, or the American Board of Professional Psychology in forensic psychology; or
  • Training consisting of at least 24 hours of specialized forensic training relating to incompetency or insanity evaluations, and at least eight hours of continuing education relating to forensic evaluations, completed in the 12 months preceding the appointment.

A psychiatrist or psychologist also needs to have completed six hours of required continuing education in courses in forensic psychiatry or psychology, as appropriate, in either of the reporting periods in the 24 months preceding the appointment.

Under Texas Code of Criminal Procedure § 46B.024, the factors that should be considered by an expert during an examination and in any report should include the following:

  • The capacity of the alleged offender during criminal proceedings to:
    • rationally understand the charges against the alleged offender and the potential consequences of the pending criminal proceedings;
    • disclose to counsel pertinent facts, events, and states of mind;
    • engage in a reasoned choice of legal strategies and options;
    • understand the adversarial nature of criminal proceedings;
    • exhibit appropriate courtroom behavior; and
    • testify;
  • As supported by current indications and the alleged offender's personal history, whether the alleged offender:
    • has a mental illness; or
    • is a person with mental retardation;
  • Whether the identified condition has lasted or is expected to last continuously for at least one year;
  • The degree of impairment resulting from the mental illness or mental retardation, if existent, and the specific impact on the alleged offender's capacity to engage with counsel in a reasonable and rational manner; and
  • If the alleged offender is taking psychoactive or other medication:
    • whether the medication is necessary to maintain the alleged offender's competency; and
    • the effect, if any, of the medication on the alleged offender's appearance, demeanor, or ability to participate in the proceedings.

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Houston Insanity Defenses

Insanity is included in the general defenses to criminal responsibility under Texas law. The Texas Penal Code § 8.01 states that it is an affirmative defense to prosecution that an alleged offender—at the time of the conduct charged—did not know that his or her conduct was wrong as the result of severe mental disease or defect.

Under Texas law on the insanity defense, the definition of the term "mental disease or defect" does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.


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History of the Insanity Defense

The M'Naghten (often pronounced “McNaughton”) Test that is used by Texas and many other states to determine whether an alleged offender was sane at the time of committing a crime is based on a 19th-century case of Scottish woodturner Daniel M'Naghten.

In 1843, M'Naghten drew a pistol and believed he had shot and killed the Prime Minister of the United Kingdom, Robert Peel when in actuality he shot and fatally injured the prime minister's secretary, Edward Drummond.

A jury later acquitted M'Naghten after finding him "not guilty by reason of insanity." The determination that the House of Lords made in a subsequent review of the case was that a defense on the grounds of insanity must involve clear proof that at the time of committing an alleged criminal offense. Also, the accused party must have been laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he or she was doing.

Alternatively, if he or she did know it, the accused party did not know that what he or she was doing was wrong. This determination essentially became the legal standard in cases involving an issue of insanity in England and ultimately American courts for more than a century.

Even if an alleged offender knew that his or her actions were wrong but he or she could not stop him or herself from the criminal conduct due to a mental disease or defect at the time of the conduct, he or she could still invoke the insanity defense in Texas under a concept called the “irresistible impulse” that addresses an alleged offender’s ability to control him or herself.


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Effects Incompetency or Insanity Claims under Texas Law

Incompetency and insanity are not the same types of legal claims under Texas law. Incompetency essentially acts as a stay to criminal proceedings, while insanity acts as an acquittal for alleged offenders. It is critical to understand that successfully arguing insanity or incompetency is not the same as being found not guilty, as alleged offenders will still be held accountable for their actions.

An alleged offender who has been determined to be incompetent to stand trial will either be committed to a mental hospital or other inpatient or residential facility or ordered to participate in an outpatient treatment program.

Under Texas Code of Criminal Procedure § 46B.0095, an alleged offender cannot be committed to a mental hospital or other inpatient or residential facility, ordered to participate in an outpatient treatment program, or subjected to both inpatient and outpatient treatment for a cumulative period that exceeds the maximum term provided by law for the offense for which he or she was to be tried unless he or she was charged with a misdemeanor, in which case the maximum period of restoration is two years.

If the alleged offender’s competency is reestablished, then the case will move to criminal trial. If the alleged offender remains incompetent throughout treatment, then the court will enter an order for extended mental health services transferring him or her to the appropriate court for civil commitment proceedings under Texas Health and Safety Code § 574.035.

An alleged offender who is acquitted by reason of insanity will face similar restrictions even though he or she is not sent to jail or prison. This will usually involve a court order of commitment to inpatient treatment or residential care or a court order to receive outpatient or community-based treatment and supervision.


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Texas Insanity Resources

Mental Health America (MHA) of Greater Houston — Established by Ima Hogg, the daughter of former Texas Governor James S. Hogg, MHA Houston is the area’s oldest mental health education and advocacy organization. Its mission is “to enhance the mental health of all Houstonians and improve the lives of those with mental illnesses.” You can learn more about the organization’s various programs as well as policy and advocacy efforts.

2211 Norfolk Street
Suite 810
Houston, Texas 77098
(713) 523-8963

National Alliance on Mental Illness (NAMI) — This 501(c)3 nonprofit membership organization is the largest grassroots mental health organization in the nation. On the website, you can learn more about mental illness, find support, and get involved. There is also an anonymous app that allows you to share and air your experiences or the NAMI HelpLine (available weekdays 9 a.m.–5 p.m., CST) has staff and volunteers who can answer questions about mental health issues including symptoms of mental illness, treatment options, local support groups and services, education programs, helping family members get treatment, programs to help find jobs, and legal issues.

1-800-950-NAMI (6264)

Chapter 46c. for the Code of Criminal Procedure on the Insanity Defense in Texas — Visit the website of the Texas State legislature to find the complete statutory language of Chapter 46c related to the criminal procedures for the insanity defense in Texas. Read more about the legal definitions of mental illness, mental retardation, and residential care facility. The statute provides for a maximum period of commitment and victim notification of release. Find out the rules for raising the insanity defense and obtaining orders compelling the defendant to submit to examination. In subchapter D, the statute discusses the determination of sanity by a jury or judge and a prohibition against informing the jury of the consequences of acquittal.


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Find a Lawyer in Houston for Incompetency or Insanity Claims

Do you believe that you or your loved one may be legally incompetent to stand trial or should be acquitted by reason of insanity? These are extremely complicated claims to raise that require the assistance of highly skilled legal representation. In many cases, the best defense the attorney can assert is the incompetence or insanity defense.

Horak Law provides aggressive legal defense for clients with these types of cases throughout Harris County, including Conroe, The Woodlands, Galveston, Sugar Land, Pearland, Richmond-Rosenberg, Spring, Missouri City, Pasadena, and League City. You can have our Harris County criminal defense attorney evaluate your case by contacting our firm today at (713) 225-8000 or toll-free at (800) 225-8009 to arrange a completely free initial consultation.


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Our Office in The Woodlands
1790 Hughes Landing Blvd #400 The Woodlands, TX 77380 (281) 907-4990
Our Office in Houston
5300 Memorial Dr #750 A Houston, TX 77007 (713) 225-8000
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Matt Horak Matt Horak is Board Certified in Criminal Law by the Texas Board of Legal Specialization since 2014