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54 St. Mary's L.J. 1 (2023)

handle is hein.journals/stmlj54 and id is 1 raw text is: ARTICLE MISTAKES WITH THE MISTAKE DEFENSE IN TEXAS CRIMINAL LAW CHARLES P. BUBANY* I. The Unreasonable Reasonable Mistake of Fact Defense .............. 2 II. Finding an Intent to N egate .............................................................. 10 III. A Detour by Way of Penal Code Section 6.04(b) (1) .........................18 IV. M istake of Fact or M istake of Law?................................................ 23 When the Texas legislature enacted a comprehensive penal code in 1974, it provided specifically for the defenses of mistake of fact and mistake of law. Unfortunately, the adoption of those provisions reflects a missed opportunity to clarify the law concerning mistake as a defense to criminal liability in Texas criminal law. The predicted analytical problems spawned by that missed opportunity have come to pass. This article will review the problems the Texas courts have had to face in interpreting the code provisions and will offer suggestions concerning the proper approach to their application. The first problem is the requirement that the mistake of fact defense is available only if it is determined to be reasonable. This requirement is * Adjunct Professor of Law, Texas Tech University School of Law; J.D. Washington University (St. Louis: B.A., St. Ambrose University). 1

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