By Gallego H.B. No. 1655
75R5217 GWK-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to procedures for determining whether a defendant
1-3 sentenced to death is incompetent for purposes of execution.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 11, Code of Criminal Procedure, is
1-6 amended by adding Article 11.072 to read as follows:
1-7 Art. 11.072. MENTAL INCOMPETENCY; EFFECT ON EXECUTIONS
1-8 Sec. 1. EXECUTION OF MENTALLY INCOMPETENT PROHIBITED. The
1-9 state may not execute a person if it is determined that the person
1-10 is mentally incompetent to be executed.
1-11 Sec. 2. MENTALLY INCOMPETENT TO BE EXECUTED. For the
1-12 purposes of this article, a person is mentally incompetent to be
1-13 executed if the person lacks the mental capacity to understand the
1-14 fact of the person's impending execution and the reason for the
1-15 execution.
1-16 Sec. 3. APPLICATION: TIME PERIOD. An application under
1-17 this article may not be filed until:
1-18 (1) direct appeal and state habeas review under
1-19 Article 11.07 or Article 11.071 have been completed; and
1-20 (2) an order setting a date for the execution has been
1-21 signed.
1-22 Sec. 4. APPLICATION: CONTENTS. (a) An application brought
1-23 under this article must be filed in the convicting court.
1-24 (b) An application brought under this article must identify
2-1 the proceeding in which the applicant was convicted, give the date
2-2 of the final judgment, set forth the fact that an execution date
2-3 has been set, give the date of the signing of the order, and
2-4 clearly set forth alleged facts in support of the assertion that
2-5 the applicant is presently mentally incompetent to be executed.
2-6 The applicant shall attach affidavits, records, or other evidence
2-7 supporting the applicant's allegations or shall state why those
2-8 items are not attached. The application shall identify any
2-9 previous proceedings in which the applicant challenged the
2-10 applicant's mental competency to be executed or challenged the
2-11 applicant's mental competency in relation to the conviction and
2-12 sentence in question, including any challenge or issue with respect
2-13 to sanity at the time of the offense or competency to stand trial.
2-14 Arguments and citations of authority must be omitted from the
2-15 application. The application must be verified by the oath of the
2-16 applicant or of some person in the applicant's behalf.
2-17 Sec. 5. APPLICATION: SERVICE. Service of the application
2-18 brought under this article must be made on the district attorney of
2-19 the county of conviction. An additional copy of the application
2-20 must be served on the person having custody of the applicant.
2-21 Sec. 6. ANSWER. The respondent shall answer an application
2-22 filed under this article as soon as possible after the application
2-23 is filed.
2-24 Sec. 7. PRELIMINARY SHOWING. (a) On receipt of an
2-25 application submitted under this article, the district court shall
2-26 determine whether the applicant has raised a bona fide doubt of the
2-27 applicant's mental competency to be executed on the basis of:
3-1 (1) the application, attached documents, and
3-2 responsive pleadings, if any; and
3-3 (2) if applicable, the presumption of competency under
3-4 Section 11.
3-5 (b) If the court determines that the applicant has made a
3-6 showing of mental incompetency, the court shall receive additional
3-7 proof on the issue as provided by Section 10.
3-8 (c) If the court determines that the applicant has failed to
3-9 make a showing of mental incompetency, the court shall make written
3-10 findings of fact and conclusions of law reflecting this
3-11 determination and enter final judgment denying the application.
3-12 Sec. 8. REPRESENTATION BY COUNSEL. (a) An applicant may
3-13 file a request with the district court for the appointment of
3-14 qualified counsel simultaneously with the filing of an application
3-15 under this article.
3-16 (b) The district court shall appoint an attorney to
3-17 represent the applicant in proceedings under this article if the
3-18 court determines that:
3-19 (1) the applicant is indigent; and
3-20 (2) the applicant has made the preliminary showing
3-21 required by Section 7(a).
3-22 (c) An attorney appointed under this section shall be
3-23 reasonably compensated from county funds.
3-24 Sec. 9. EXAMINATION OF APPLICANT; APPOINTMENT OF EXPERTS.
3-25 (a) By filing an application under this article, the applicant
3-26 specifically:
3-27 (1) consents to submit to a state examination for the
4-1 purpose of assessing mental competency to be executed; and
4-2 (2) waives any claim of privilege with respect to and
4-3 consents to the release of all mental health and medical records
4-4 maintained by the institutional division of the Texas Department of
4-5 Criminal Justice.
4-6 (b) An applicant may file a request for appointment of an
4-7 expert simultaneously with the filing of an application under this
4-8 article. The applicant shall submit with the motion a specific
4-9 statement as to the particular expert requested, the nature of the
4-10 examination to be conducted, and an estimate of the expenses to be
4-11 incurred. If the district court determines that the applicant has
4-12 made the preliminary showing required by Section 7(a), the court
4-13 shall appoint an expert to conduct an examination of the applicant
4-14 as soon as possible. An expert appointed under this section shall
4-15 be reasonably compensated from county funds.
4-16 Sec. 10. PROOF; DISPOSITION. (a) If the district court
4-17 determines that the applicant has made the preliminary showing
4-18 required by Section 7(a), the district court shall conduct an
4-19 evidentiary hearing at which both the applicant and the state may
4-20 present proof. The evidentiary hearing may be conducted before the
4-21 filing of responsive pleadings under Section 6 and, in any event,
4-22 shall be scheduled as soon as possible.
4-23 (b) If the district court determines that testimony of
4-24 witnesses is not necessary, the hearing may consist of and the
4-25 court's determination may be based on:
4-26 (1) affidavits, depositions, interrogatories,
4-27 notarized evaluations by mental health experts, and transcripts of
5-1 testimony from other relevant proceedings; and
5-2 (2) the court's personal recollection.
5-3 (c) The Texas Rules of Criminal Evidence apply to a hearing
5-4 held under this article.
5-5 (d) The district court may modify or withdraw the order
5-6 setting the date for the applicant's execution, as provided in
5-7 Article 43.141, if the court determines that:
5-8 (1) the applicant has made the preliminary showing
5-9 under Section 7(a); and
5-10 (2) it is not possible to resolve the issue of the
5-11 applicant's mental competency to be executed in the time before the
5-12 scheduled execution date.
5-13 (e) After reviewing the pleadings and evidence, the judge of
5-14 the district court shall enter final judgment either granting or
5-15 denying the application and shall make written findings of fact and
5-16 conclusions of law on which the judgment is based.
5-17 (f) If the court finds in favor of the applicant by finding
5-18 that the applicant has proven by a preponderance of the evidence
5-19 the applicant's mental incompetence to be executed, the court shall
5-20 enter an order staying the applicant's execution until the
5-21 applicant regains the applicant's mental competency to be executed.
5-22 (g) If the court finds in favor of the state and denies the
5-23 application, any stay previously entered under this article is
5-24 dissolved immediately and the court shall set a new date for
5-25 execution as provided by Article 43.141.
5-26 Sec. 11. PREVIOUS ADJUDICATION AS PRESUMPTION OF MENTAL
5-27 COMPETENCY. (a) If an applicant is determined to have previously
6-1 filed an application under this article, Article 11.07, or Article
6-2 11.071, in which the applicant alleged the applicant's mental
6-3 incompetence to be executed, and has previously been determined to
6-4 be mentally competent to be executed, the previous adjudication
6-5 creates a presumption of mental competency and the applicant is not
6-6 entitled to a hearing on the question of mental incompetency to be
6-7 executed, unless the applicant makes a prima facie showing of a
6-8 substantial change in circumstances sufficient to raise a
6-9 significant question as to the applicant's mental incompetency to
6-10 be executed at the time of filing the subsequent application.
6-11 (b) If an applicant is determined to have raised at the time
6-12 of the applicant's capital murder trial the applicant's mental
6-13 incompetency to stand trial and was determined at the time of trial
6-14 to be mentally competent to stand trial, the previous adjudication
6-15 creates a presumption of mental competency and the applicant is not
6-16 entitled to a hearing on the question of mental incompetency to be
6-17 executed, unless the applicant makes a prima facie showing of a
6-18 substantial change in the circumstances sufficient to raise a
6-19 significant question as to the applicant's mental incompetency to
6-20 be executed at the time of filing the subsequent application.
6-21 Sec. 12. APPEAL. (a) If the district court finds in favor
6-22 of the state by denying the application pursuant to Section 7(c) or
6-23 Section 10(g), the applicant may appeal the decision to the Court
6-24 of Criminal Appeals.
6-25 (b) If the district court finds in favor of the applicant by
6-26 granting the application and staying the execution pursuant to
6-27 Section 10(f), the state may appeal the decision to the Court of
7-1 Criminal Appeals.
7-2 (c) The Court of Criminal Appeals shall expeditiously review
7-3 all appeals from the grant or denial of applications submitted
7-4 under this article. The court may set the cause for oral argument
7-5 and may request further briefing of the issues by the applicant or
7-6 the state. After reviewing the record, the court shall enter its
7-7 judgment affirming or reversing the district court's judgment or,
7-8 if the application was denied pursuant to Section 7(c), remanding
7-9 the cause for further fact-finding.
7-10 Sec. 13. PROCEDURE ON CONVICTED PERSON'S REGAINING MENTAL
7-11 COMPETENCY. If a convicted person under sentence of death who is
7-12 found to be mentally incompetent to be executed under this article
7-13 regains the person's mental competency, the convicting court shall
7-14 vacate any previously entered stay of execution. The court shall
7-15 then set a new date for execution as provided in Article 43.141.
7-16 SECTION 2. This Act takes effect September 1, 1997.
7-17 SECTION 3. The importance of this legislation and the
7-18 crowded condition of the calendars in both houses create an
7-19 emergency and an imperative public necessity that the
7-20 constitutional rule requiring bills to be read on three several
7-21 days in each house be suspended, and this rule is hereby suspended.