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.