Texas forensic evaluations — Daubert under the Robinson factors.

Robinson + Kelly + Texas Rule 702.

Texas adopted Daubert in two parallel lines. Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), established a Daubert-aligned reliability standard for criminal scientific evidence. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995), articulated a parallel set of reliability factors for the civil context. Texas Rule of Evidence 702 codifies the requirement that expert testimony be reliable.

The Robinson factors track Daubert closely — testability, peer-review, error rate, methodology standards, general acceptance — with Texas- specific refinements: the reliance of the expert on the methodology, whether the methodology has been litigated, and the non-judicial uses of the methodology. The factors are non-exclusive and the trial court applies them flexibly under abuse-of-discretion review.

For the report writer, Texas reports must satisfy the same reliability bar as federal reports, with attention to whether the chosen methodology has been the subject of Texas appellate scrutiny and whether the application to the specific case is sound.

Texas competency procedure.

The Texas competency framework was substantially restructured in 2003 with the enactment of Code of Criminal Procedure article 46B, which replaced the former article 46.02 and shifted Texas competency practice toward a more procedurally articulated model. Article 46B governs the appointment of experts, the content of competency reports, the procedural posture for restoration, and the maximum-commitment limits that implement Jackson v. Indiana, 406 U.S. 715 (1972).

Article 46B.024 enumerates the topics a competency report must address. The list includes: capacity to rationally understand the charges and potential consequences, capacity to disclose pertinent facts to counsel, capacity to engage in reasoned choice of legal strategies, capacity to understand the adversarial nature of the proceedings, capacity to exhibit appropriate courtroom behavior, and capacity to testify. Reports that don’t address each topic the statute enumerates are vulnerable to impeachment on the statutory completeness ground alone.

See the CST evaluation page for the substantive analysis. The Texas overlay adds Article 46B’s enumerated topics and the procedural framework for restoration commitment.

Texas insanity defense.

Texas Penal Code § 8.01 articulates a narrow M’Naghten-derived insanity test: at the time of the conduct, as a result of severe mental disease or defect, the actor did not know that the conduct was wrong. Texas does not include a volitional prong, and does not include the cognitive prong about the “nature and quality” of the act — only wrongfulness. The defense bears the burden by a preponderance.

For the report writer, the narrow Texas formulation means the analysis must focus specifically on the wrongfulness inquiry — with attention to whether wrongfulness is interpreted in moral or legal terms in the relevant Texas appellate authority. Code of Criminal Procedure article 46C governs the procedural framework. Post-acquittal commitment proceeds under Texas Health and Safety Code chapter 574.

Texas civil commitment of sexually violent predators.

Texas Health and Safety Code chapter 841 establishes civil commitment for sexually violent predators. The Texas SVP framework is procedurally distinct from the indeterminate-commitment model used in some other states — Texas uses outpatient supervision and treatment as the default disposition, with inpatient confinement reserved for the most serious cases.

The substantive standard requires a finding that the respondent has a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence. In re Commitment of Bohannan, 388 S.W.3d 296 (Tex. 2012), and the line of Texas Court of Appeals decisions following from it have shaped the evidentiary requirements — particularly around the distinction between mental illness, personality disorder, and behavioral abnormality as the statute uses the term.

See the psychosexual evaluation page for the substantive methodology. The Texas overlay adds the chapter 841 procedural posture, the outpatient-supervision default disposition, and the Bohannan-line evidentiary requirements.

Texas custody evaluation framework.

Texas custody analysis sits on top of Family Code chapter 153, which governs conservatorship, possession, and access. The substantive best-interest standard is articulated through case law — principally Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), which identified a non-exclusive list of factors Texas courts apply: the desires of the child, present and future emotional and physical needs, present and future emotional and physical danger, parental abilities, programs available to assist the parent, plans of the parent, stability of the home, acts or omissions indicating the parent-child relationship is improper, and any excuse for those acts or omissions.

Texas custody evaluations are governed by Family Code section 107.104 (qualifications), 107.108 (appointment of evaluator), and 107.109 (the elements of a basic evaluation). Section 107.114 governs the elements of an adoption evaluation. Reports that don’t track these statutory requirements have a foundation vulnerability.

See the child custody evaluation page for the substantive methodology. The Texas overlay adds the Holley factor coverage and the Family Code chapter 107 statutory requirements for the evaluation.

What gets attacked in Texas reports.

• Robinson factor application. Texas expert reports face Robinson-factor reliability challenges that mirror federal Daubert practice. Foundation must address each factor.
• Article 46B.024 statutory completeness. Competency reports must address each enumerated topic the statute requires. Omitting one is a discrete vulnerability.
• Wrongfulness interpretation. Texas insanity reports must engage with the moral-vs-legal wrongfulness distinction as the controlling Texas authority defines it.
• Behavioral abnormality vs. diagnosis. SVP reports must distinguish behavioral abnormality from generic diagnosis — the post-Bohannan line is unforgiving on this point.
• Holley factor coverage. Custody opinions that don’t address the Holley factors are exposed on foundation in Texas.
• Chapter 107 procedural compliance. Custody evaluations must satisfy the Family Code chapter 107 requirements; non-compliance is a threshold issue.

What ForensicShield checks for Texas-posture reports.

• Robinson / Kelly reliability factors are applied as the admissibility frame, with Texas-specific refinements
• Article 46B.024 enumerated topics are checked against competency report content
• Penal Code § 8.01 wrongfulness analysis is flagged for insanity reports, with attention to the moral-vs- legal distinction
• Health & Safety Code chapter 841 procedural posture and the Bohannan-line evidentiary requirements are surfaced for SVP work
• Holley factor coverage is flagged for custody reports; Family Code chapter 107 procedural compliance is checked
• Texas Supreme Court, Court of Criminal Appeals, and Court of Appeals authority is surfaced with verified citations

Other jurisdiction-specific guides.

See the federal, California, Florida, and New York jurisdiction pages for parallel coverage. Substantive evaluation pages apply across jurisdictions: competency, criminal responsibility, violence risk, psychosexual / SVP, custody, mitigation, and personal injury.