By: Conley H.B. No. 2735 73R6746 T A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the exclusion of defendants suffering from mental 1-3 retardation or mental illness from the application of capital 1-4 punishment. 1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-6 SECTION 1. SHORT TITLE. This Act may be cited as the 1-7 Mentally Impaired Defendants Act. 1-8 SECTION 2. Article 37.071 Section 2 Code of Criminal 1-9 Procedure is amended, and a Section 3 is added, to read as follows: 1-10 Art. 37.071. Procedure in capital case 1-11 Sec. 1. If a defendant is found guilty in a capital felony 1-12 case in which the state does not seek the death penalty, the judge 1-13 shall sentence the defendant to life imprisonment. 1-14 Sec. 2. (a) If a defendant is tried for a capital offense 1-15 in which the state seeks the death penalty, on a finding that the 1-16 defendant is guilty of a capital offense, the court shall conduct a 1-17 separate sentencing proceeding to determine whether the defendant 1-18 shall be sentenced to death or life imprisonment. The proceeding 1-19 shall be conducted in the trial court and, except as provided by 1-20 Article 44.29(c) of this code, before the trial jury as soon as 1-21 practicable. In the proceeding, evidence may be presented by the 1-22 state and the defendant or the defendant's counsel as to any matter 1-23 that the court deems relevant to sentence, including evidence of 1-24 the defendant's background or character or the circumstances of the 2-1 offense that mitigates against the imposition of the death penalty. 2-2 This subsection shall not be construed to authorize the 2-3 introduction of any evidence secured in violation of the 2-4 Constitution of the United States or of the State of Texas. The 2-5 state and the defendant or the defendant's counsel shall be 2-6 permitted to present argument for or against sentence of death. 2-7 The court, the attorney representing the state, the defendant, or 2-8 the defendant's counsel may not inform a juror or a prospective 2-9 juror of the effect of a failure of a jury to agree on issues 2-10 submitted under Subsection (c), (e) or (g) of this article. 2-11 (b) On conclusion of the presentation of the evidence, the 2-12 court shall submit the following issues to the jury: 2-13 (1) whether there is a probability that the defendant 2-14 would commit criminal acts of violence that would constitute a 2-15 continuing threat to society; and 2-16 (2) in cases in which the jury charge at the guilt or 2-17 innocence stage permitted the jury to find the defendant guilty as 2-18 a party under Sections 7.01 and 7.02, Penal Code, whether the 2-19 defendant actually caused the death of the deceased or did not 2-20 actually cause the death of the deceased but intended to kill the 2-21 deceased or another or anticipated that a human life would be 2-22 taken. 2-23 (c) The state must prove each issue submitted under 2-24 Subsection (b) of this article beyond a reasonable doubt, and the 2-25 jury shall return a special verdict of "yes" or "no" on each issue 2-26 submitted under Subsection (b) of this Article. 2-27 (d) The court shall charge the jury that: 3-1 (1) in deliberating on the issues submitted under 3-2 Subsection (b) of this article, it shall consider all evidence 3-3 admitted at the guilt or innocence stage and the punishment stage, 3-4 including evidence of the defendant's background or character or 3-5 the circumstances of the offense that militates for or mitigates 3-6 against the imposition of the death penalty; 3-7 (2) it may not answer any issue submitted under 3-8 Subsection (b) of this article "yes" unless it agrees unanimously 3-9 and it may not answer any issue "no" unless 10 or more jurors 3-10 agree; and 3-11 (3) members of the jury need not agree on what 3-12 particular evidence supports a negative answer to any issue 3-13 submitted under Subsection (b) of this article. 3-14 (e) If it is raised by the evidence, the court shall 3-15 instruct the jury that if the jury returns an affirmative finding 3-16 to each issue submitted under Subsection (b) of this article, it 3-17 shall answer the following issue: 3-18 Whether the defendant is impaired by "mental retardation" as 3-19 that term is defined by Section 614.001 (6) of the Health and 3-20 Safety Code or "mental illness" as defined by Section 614.001 (5) 3-21 of the Health and Safety Code. 3-22 (f) The court shall charge the jury that in answering the 3-23 issue submitted under Subsection (e) of this article, the jury: 3-24 (1) shall answer the issue "yes" or "no"; 3-25 (2) may not answer the issue "no" unless it agrees 3-26 unanimously and may not answer the issue "yes" unless 10 or more 3-27 jurors agree; and 4-1 (3) need not agree on what particular evidence 4-2 supports an affirmative finding on the issue. 4-3 (g) The court shall instruct the jury that if the jury 4-4 returns an affirmative finding to each issue submitted under 4-5 Subsection (b) of this article, and where applicable a negative 4-6 finding to the issue submitted under Subsection (e) of this 4-7 article, it shall then answer the following issue: 4-8 Whether, taking into consideration all of the evidence, 4-9 including the circumstances of the offense, the defendant's 4-10 character and background, and the personal moral culpability of the 4-11 defendant, there is a sufficient mitigating circumstance or 4-12 circumstances to warrant that a sentence of life imprisonment 4-13 rather than a death sentence be imposed. 4-14 (h) The court shall charge the jury that in answering the 4-15 issue submitted under Subsection (e) of this article, the jury: 4-16 (1) shall answer the issue "yes" or "no"; 4-17 (2) may not answer the issue "no" unless it agrees 4-18 unanimously and may not answer the issue "yes" unless 10 or more 4-19 jurors agree; 4-20 (3) need not agree on what particular evidence 4-21 supports an affirmative finding on the issue; and 4-22 (4) shall consider mitigating evidence to be evidence 4-23 that a juror might regard as reducing the defendant's moral 4-24 blameworthiness. 4-25 (i) If the jury returns an affirmative finding on each issue 4-26 submitted under Subsection (b) of this article and a negative 4-27 finding on the issues submitted under Subsections (e) and (g) of 5-1 this article, the court shall sentence the defendant to death. If 5-2 the jury returns a negative finding on any issue submitted under 5-3 Subsection (b) of this article or an affirmative finding on either 5-4 of the issues submitted under Subsections (e) or (g) of this 5-5 article or is unable to answer any issue submitted under Subsection 5-6 (b), (e) or (g) of this article, the court shall sentence the 5-7 defendant to confinement in the institutional division of the Texas 5-8 Department of Criminal Justice for life. 5-9 (j) The judgment of conviction and sentence of death shall 5-10 be subject to automatic review by the Court of Criminal Appeals. 5-11 Sec. 3. In the event that a defendant has already been 5-12 convicted of capital murder under Section 19.03 Penal Code and 5-13 sentenced to death under Article 37.071 Code of Criminal Procedure 5-14 on or after the effective date of this Act, the defendant's mental 5-15 status shall be determined by the Council On Offenders With Mental 5-16 Impairments under Section 614.007 Health and Safety Code. If the 5-17 defendant falls within the statutory definitions of "mental 5-18 retardation" as that term is defined by Section 614.001 (6) of the 5-19 Health and Safety Code or "mental illness" as defined by Section 5-20 614.001 (5) of the Health and Safety Code, the defendant's sentence 5-21 shall be reformed from a sentence of death to a sentence of 5-22 confinement in the institutional division of the Texas Department 5-23 of Criminal Justice for life. 5-24 SECTION 3. This Act takes effect September 1, 1993. 5-25 SECTION 4. The importance of this legislation and the 5-26 crowded condition of the calendars in both houses create an 5-27 emergency and an imperative public necessity that the 6-1 constitutional rule requiring bills to be read on three several 6-2 days in each house be suspended, and this rule is hereby suspended.