Tex. Codes » Penal Code · TITLE 2. GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY · CHAPTER 8. GENERAL DEFENSES TO CRIMINAL RESPONSIBILITY
Texas Codes

Tex. Penal Code § 8.08 (2026)

Child With Mental Illness, Disability, Or Lack Of Capacity

✓ current as of May 2026
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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.

(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.

Notes of Decisions
Cited in 3 cases, 2005–2020 · leading case: Morris v. State, 214 S.W.3d 159 (Tex. App. 2007).
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Morris v. State, 214 S.W.3d 159 (Tex. App. 2007). “08_ Tex. Penal Code Ann. § 8.08 (a), (b)(1)(A) (Vernon Supp.”
Chandler v. State, 165 S.W.3d 63 (Tex. App. 2005). “; Tex. Pen.Code Ann. § 8.08(a). Nor do we find any impediment to the district court separately revoking terms of deferred-adjudication community supervision that were initially imposed at the same time.”
in the Matter of B.A.L., a Juv. (Tex. App. 2020). “See TEX. PENAL CODE ANN. § 8.08. This defense provides for the dismissal of a complaint against a child and addresses whether the child, (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)…”
— Tex. Penal Code § 8.08(a) — 1 case
Chandler v. State, 165 S.W.3d 63 (Tex. App. 2005). “; Tex. Pen.Code Ann. § 8.08(a). Nor do we find any impediment to the district court separately revoking terms of deferred-adjudication community supervision that were initially imposed at the same time.”
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