SRC-JBJ S.B. 326 76(R)   BILL ANALYSIS


Senate Research Center   S.B. 326
76R4713 GWK-FBy: Ellis
Criminal Justice
2/23/1999
As Filed


DIGEST 

Currently, the Texas Penal Code authorizes a court to sentence a mentally
retarded person to death in capital murder cases.  States that have banned
capital punishment for the mentally retarded concede that individuals with
an I.Q. of 70 or less should not be executed, since punishment for an
offense should be related to the blameworthiness of the offender.  As the
most extreme sanction available to the state, the death penalty is reserved
for an offender who has the highest degree of blameworthiness for an
extraordinary, aggravated crime.  Although a  mentally retarded person may
be capable of telling right from wrong and may be held responsible for
criminal behavior, a mentally retarded person by definition has sub-average
intellectual functioning with concurrent deficits in socially adaptive
behavior.  S.B. 326 would authorize a defendant to claim mental
retardation, and would prohibit a court from sentencing a defendant to
death on the finding that the defendant was mentally retarded at the time
of the offense. 

PURPOSE

As proposed, S.B. 326 prohibits the death penalty in mental retardation
cases. 

RULEMAKING AUTHORITY

This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Title I, Code of Criminal Procedure, by adding Chapter
46B, as follows: 

CHAPTER 46B.  CAPITAL CASE:  EFFECT OF MENTAL RETARDATION 

 Sec. 46B.01.  DEFINITION.  Defines "mental retardation." 

Sec. 46B.02.  RESTRICTION ON DEATH PENALTY.  Prohibits a person who
committed an offense while mentally retarded from receiving a death
sentence, notwithstanding Section 19.03(b), Penal Code, or Article 37.071,
Code of Criminal Procedure. 

Sec. 46B.03  HEARING.  Authorizes a defense counsel in a capital case to
request the court to determine whether the defendant was mentally retarded
at the time of the offense.  Requires the court to schedule a hearing on
the issue of mental retardation and to notify all involved parties. 

Sec. 46B.04.  BURDEN OF PROOF.  Requires the defendant to shoulder the
burden of proof for mental retardation.  Authorizes the state to offer
rebuttal evidence. 

Sec. 46B.05.  SENTENCING ALTERNATIVES.  Requires the court to sentence a
certified mentally retarded defendant to life imprisonment in a Texas
Department of Criminal Justice institution, if the court finds that the
defendant was mentally retarded at the time of the offense and the
defendant is convicted.  Requires the court to conduct a trial as usual
without reference in court or in jury instruction to the mental retardation
hearing, if the defendant is not found to be mentally retarded.  Authorizes
the defendant to present at trial evidence of mental disability as
permitted by Article 37.071, Code of Criminal Procedure. 

SECTION 2.Effective date: September 1, 1999.

SECTION 3.Emergency clause.