I have a defendant set for trial on an Aggravated Sexual Assault of a Child case. He was 17 and the victim was 11. The defendant is mentally retarded. Does anyone know of any alternative to the criminal justice system for such an offender? He needs to be monitored to protect future victims, but he doesn't need to go to prison. Probation? I'm not sure that option is viable either.

Has the defendant been examined for competency?

I guess you could try for a commitment under Ch. 593 of the Health & Safety Code.

You might also look at the Sexually Violent Predator provisions in Chapter 841 of the Health and Safety Code. See Commitment of Fisher v. State, 123 S.W.3d 828 (Tex.App. -- Corpus Christi 2003, pet. granted).

Defense attorney claims he is completely competant. I have never tried to have a defendant examined without the defense attorney's approval -- is there a mechanism to do so? The defense lawyer doesn't want him examined!

Assuming he's competant, what else can we do?

Do what is right! if you think they are incompetent you can request that they be examined over the objections of the Defense attorney. Few will risk a chance of a lawsuit by objecting too strongly. At the very least let the Judge know.

I had a case like that when I was a prosecutor. We ended up getting him a guardian, and he was placed at a ranch for young mentally retarded adults. Seemed like the right thing to do.

The defendant can be both mentally retarded and mentally competent to stand trial. Just depends on the level of MR. I had a female defendant placed in a ranch, also, that was arranged with MHMR.

Under CCP Art. 46B.004(1) you have the right to suggest to the court that the defendant may be incompetent to stand trial.