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.