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.