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.