1-1 AN ACT
1-2 relating to the 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 46, Code of Criminal Procedure, is
1-6 amended by adding Article 46.04 to read as follows:
1-7 Art. 46.04. COMPETENCY TO BE EXECUTED. (a) A person who is
1-8 incompetent to be executed may not be executed.
1-9 (b) The trial court retains jurisdiction over motions filed
1-10 by or for a defendant under this article.
1-11 (c) A motion filed under this article must identify the
1-12 proceeding in which the defendant was convicted, give the date of
1-13 the final judgment, set forth the fact that an execution date has
1-14 been set if the date has been set, and clearly set forth alleged
1-15 facts in support of the assertion that the defendant is presently
1-16 incompetent to be executed. The defendant shall attach affidavits,
1-17 records, or other evidence supporting the defendant's allegations
1-18 or shall state why those items are not attached. The defendant
1-19 shall identify any previous proceedings in which the defendant
1-20 challenged the defendant's competency in relation to the conviction
1-21 and sentence in question, including any challenge to the
1-22 defendant's competency to be executed, competency to stand trial,
1-23 or sanity at the time of the offense. The motion must be verified
1-24 by the oath of some person on the defendant's behalf.
2-1 (d) On receipt of a motion filed under this article, the
2-2 trial court shall determine whether the defendant has raised a
2-3 substantial doubt of the defendant's competency to be executed on
2-4 the basis of:
2-5 (1) the motion, any attached documents, and any
2-6 responsive pleadings; and
2-7 (2) if applicable, the presumption of competency under
2-8 Subsection (e).
2-9 (e) If a defendant is determined to have previously filed a
2-10 motion under this article, and has previously been determined to be
2-11 competent to be executed, the previous adjudication creates a
2-12 presumption of competency and the defendant is not entitled to a
2-13 hearing on the subsequent motion filed under this article, unless
2-14 the defendant makes a prima facie showing of a substantial change
2-15 in circumstances sufficient to raise a significant question as to
2-16 the defendant's competency to be executed at the time of filing the
2-17 subsequent motion under this article.
2-18 (f) If the trial court determines that the defendant has
2-19 made a substantial showing of incompetency, the court shall order
2-20 at least two mental health experts to examine the defendant using
2-21 the standard described by Subsection (h) to determine whether the
2-22 defendant is incompetent to be executed.
2-23 (g) If the trial court does not determine that the defendant
2-24 has made a substantial showing of incompetency, the court shall
2-25 deny the motion.
2-26 (h) A defendant is incompetent to be executed if the
2-27 defendant does not understand:
3-1 (1) that he or she is to be executed and that the
3-2 execution is imminent; and
3-3 (2) the reason he or she is being executed.
3-4 (i) Mental health experts who examine a defendant under this
3-5 article shall provide within a time ordered by the trial court
3-6 copies of their reports to the attorney representing the state, the
3-7 attorney representing the defendant, and the court.
3-8 (j) By filing a motion under this article, the defendant
3-9 waives any claim of privilege with respect to, and consents to the
3-10 release of, all mental health and medical records relevant to
3-11 whether the defendant is incompetent to be executed.
3-12 (k) If, on the basis of reports provided under Subsection
3-13 (i), the motion, any attached documents, any responsive pleadings,
3-14 and any evidence introduced in the final competency hearing, the
3-15 trial court makes a finding by a preponderance of the evidence that
3-16 the defendant is incompetent to be executed, the clerk shall send
3-17 immediately to the court of criminal appeals in accordance with
3-18 Section 8(d), Article 11.071, the appropriate documents for that
3-19 court's determination of whether any existing execution date should
3-20 be withdrawn and a stay of execution issued. If a stay of
3-21 execution is issued by the court of criminal appeals, the trial
3-22 court periodically shall order that the defendant be reexamined by
3-23 mental health experts to determine whether the defendant is no
3-24 longer incompetent to be executed.
3-25 (l) If the trial court does not make the finding as
3-26 described by Subsection (k), the court may set an execution date as
3-27 otherwise provided by law.
4-1 SECTION 2. This Act takes effect September 1, 1999.
4-2 SECTION 3. The importance of this legislation and the
4-3 crowded condition of the calendars in both houses create an
4-4 emergency and an imperative public necessity that the
4-5 constitutional rule requiring bills to be read on three several
4-6 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 245 was passed by the House on May 4,
1999, by a non-record vote; and that the House concurred in Senate
amendments to H.B. No. 245 on May 26, 1999, by a non-record vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 245 was passed by the Senate, with
amendments, on May 21, 1999, by a viva-voce vote.
_______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor