I have a 41 yr. old male who's been in jail here for over 2 years charged with Indecency w/Child. He was found to be incompetent by a court appointed psychologist and after a competency hearing was committed to the state hospital in Wichita Falls. The psychiatrist there found him to be competent and shipped him back. The problem is this: this defendant suffered a severe head injury several years ago resulting in brain damage. The court appointed psychologist diagnosed him as mentally retarded as the result of the injury. The psychiatrist at the state hospital refuted that diagnosis and said that he is not retarded. My judge is convinced that he is in fact retarded and as a result, incompetent to proceed. Now, the judge has thrown everything in my lap and told me to fix it.

We dismissed the felony charge and got a civil committment order to an MHMR facility in Cleburne. (Minor misd. pending that's holding him). MHMR refused to accept him because they don't have a Mentally Retarded Diagnosis (DMR) and refuse to test him because he's over 18 years old.

Does anyone know of any facility, program etc. that could take this guy? He has no family to care for him available and we don't want to just turn him out on the street.

It has been my understanding that a diagnosis of mental retardation requires that the mental defect arose during the developmental period, that is that it manifested before the person was 18. Thus, if they are born with a condition, or if injury or illness causes the condition before the person is 18, they may get the MR diagnosis if they otherwise qualify. But, same illness/injury/result, arising after the age of 18, may have a different result: they won't be considered a person with mental retardation because it's not 'retardation' if they were already an adult when it manifested. The 'developmental period' prong creates a definitional problem: it does not necessarily tell you what the problem is, just when it arose.

Competency and sanity issues are not necessarily limited to mental illness or mental retardation --a mental defect like this might well qualify. Look at the statutes with a fresh eye. "Mental defect" usually means mental retardation, but not always.

You want to be sure you have a good expert who truly understands the different terms.

Consider the Texas Department of Assistive and Rehabilitative Services as a starting point.

http://www.dars.state.tx.us/services/index.shtml

While the services may be similar to what is needed for a person with mental retardation, the fact that the situation arose after the age of 18 will matter to some service providers because of funding issues and definitions that box some agencies in....

A.D.

[This message was edited by A. Diamond on 03-16-07 at .]

Thanks, I'll start with DARS and see what I can find.

You guys have just found the group of folk that "slip between the cracks." That is, the person is functioning in the mentally retarded range - perhaps both in intellect and adaptive functioning - but the deficit occurred subsequent to the age of 18. Ergo by the H&S Code he does not meet the definition of mental retardation for purposes of receiving MR services. I would also lean on my local MHMR entity to look for a sheltered workshop and a halfway house where he can be accommodated.

This sort of has me thinking about all the returning GIs with severe brain injuries (like that guy from ABC news). Some can get "fixed", but what happens to the others and how will they be classified for any state funding or assistance that the VA does not cover?

Just an update . . . So far, I've found no one willing to take this defendant. Going to start leaning on MHMR. This is beginning to be unreal -- people like this really do "slip through the cracks" in the system.

This will be a difficult case since the defendant does not qualify for an MR diagnosis and due to the nature of his charge.

Try Easter Seals Disability Services. They work with individuals who have incurred brain injury. Their website informs that this agency �assists more than one million children and adults with disabilities and their families annually through a nationwide network of more than 450 service sites. Each center provides top-quality, family-focused and innovative services tailored to meet the specific needs of the particular community it serves". Easter Seals should thus be able case-manage whatever services are available for this individual.

508 S. Adams Street, Suite 200
Fort Worth, TX 76104-5121
888-288-8324

Good luck,
George Denkowski, PhD

Does anyone know where the requirement that the disability manifest itself before age 18 comes from? As a practical matter, what differance does it make when a person becomes disabled?

I believe it is in the Health and Safety Code definition of retardation, which in turn came from APA or AAMR guidelines at the time. You might find some more information in Briseno or Atkins. Also the case cited in Briseno where the CCA had earlier used that definition. What it is all about is that it is a condition that holds you back--retards you--not an event that sends you backward. Otherwise, all those folks that fry their brains with alcohol, crack, and meth might arguably be retarded.

Another interesting sideline is that there has been some evidence that folks can keep moving up the IQ scale as they get older. Do they become unretarded? If so, at what IQ level? Or are they always retarded?

Texas Health & Safety Code

Sec. 591.003. DEFINITIONS. In this subtitle:

(13) "Mental retardation" means significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period.

For a discussion about 'developmental period' and 'prior to the age of 18', see Ex parte Briseno, 135 S.W.3d 1, Tex.Crim.App.,2004.

A person who sustains a mental injury after 18 can certainly be considered disabled, just not 'mentally retarded'. [There are other diagnoses that are only given to persons at certain ages, and when I run into them it always makes me scratch my head.]

It is abysmally simplistic to attempt to explain "mental retardation" in a few words. But one principle that might be appreciated is the term refers to a level of functioning which is significantly below the "average" level of the general population. MR is a "diagnosis" but is not a "condition" per se. It arose as a mathematical fiction, the ratio of mental age to chronological age x 100. Thus a person 18 years of age who is functioning like an 18 year-old, has an "IQ" of 100.

But, MR is also a political decision the usage of which qualifies the receipient thereof for certain public services and support. (Not to say a legal determination.) This having been said, in many cases, the identification or labeling of a person with MR is done in comparison to "adults" - i.e. persons 18 years of age or older. Unless the evaluation instrument were normed on a population of older adults, then the ratio would appear to increase. In fact, this is not the case. As well, persons with a dementia - such as Alzheimer's syndrome - may ultimately function well within the mentally retarded range. Are they mentally retarded? Well, yes, and no. They are certainly functioning within that range. They would not meet the statutory definition; nor would any other person having suffered a brain injury, albeit that he or she is functioning at a sub-normal level.

For a desk reference see:
Zigler, Edward, & Hodapp, Robert M. Understanding Mental Retardation, Cambridge Press, NY, 1998