By Gallego H.B. No. 245
76R2408 GWK-D
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. Section 5(a), Article 11.071, Code of Criminal
1-6 Procedure, is amended to read as follows:
1-7 (a) If an initial application for a writ of habeas corpus is
1-8 untimely or if a subsequent application is filed after filing an
1-9 initial application, a court may not consider the merits of or
1-10 grant relief based on the subsequent or untimely initial
1-11 application unless the application contains sufficient specific
1-12 facts establishing that:
1-13 (1) the current claims and issues have not been and
1-14 could not have been presented previously in a timely initial
1-15 application or in a previously considered application filed under
1-16 this article or Article 11.07 because the factual or legal basis
1-17 for the claim was unavailable:
1-18 (A) on the date the applicant filed the previous
1-19 application; or
1-20 (B) if the applicant did not file an initial
1-21 application, on or before the last date for the timely filing of an
1-22 initial application;
1-23 (2) by a preponderance of the evidence, but for a
1-24 violation of the United States Constitution no rational juror could
2-1 have found the applicant guilty beyond a reasonable doubt; [or]
2-2 (3) by clear and convincing evidence, but for a
2-3 violation of the United States Constitution no rational juror would
2-4 have answered in the state's favor one or more of the special
2-5 issues that were submitted to the jury in the applicant's trial
2-6 under Article 37.071 or 37.0711; or
2-7 (4) the applicant is, at the time of filing the
2-8 application, mentally incompetent to be executed, as described by
2-9 Section 2, Article 11.072.
2-10 SECTION 2. Chapter 11, Code of Criminal Procedure, is
2-11 amended by adding Article 11.072 to read as follows:
2-12 Art. 11.072. MENTAL INCOMPETENCY; EFFECT ON EXECUTIONS
2-13 Sec. 1. EXECUTION OF MENTALLY INCOMPETENT PROHIBITED. The
2-14 state may not execute a person if it is determined that the person
2-15 is mentally incompetent to be executed.
2-16 Sec. 2. MENTALLY INCOMPETENT TO BE EXECUTED. For the
2-17 purposes of this article, a person is mentally incompetent to be
2-18 executed if the person lacks the mental capacity to understand the
2-19 fact of the person's impending execution and the reason for the
2-20 execution.
2-21 Sec. 3. APPLICATION. An application for relief under this
2-22 article may be made in an application for writ of habeas corpus
2-23 filed under Article 11.071.
2-24 Sec. 4. APPLICATION: CONTENTS. An application for relief
2-25 under this article must identify the proceeding in which the
2-26 applicant was convicted, give the date of the final judgment, set
2-27 forth the fact that an execution date has been set if the date has
3-1 been set, and clearly set forth alleged facts in support of the
3-2 assertion that the applicant is presently mentally incompetent to
3-3 be executed. The applicant shall attach affidavits, records, or
3-4 other evidence supporting the applicant's allegations or shall
3-5 state why those items are not attached. The applicant shall
3-6 identify any previous proceedings in which the applicant challenged
3-7 the applicant's mental competency in relation to the conviction and
3-8 sentence in question, including any challenge to the applicant's
3-9 competency to be executed, competency to stand trial, or sanity at
3-10 the time of the offense. Arguments and citations of authority must
3-11 be omitted from the application. The application must be verified
3-12 by the oath of some person in the applicant's behalf.
3-13 Sec. 5. PRELIMINARY SHOWING. (a) On receipt of an
3-14 application for relief under this article, the district court or,
3-15 if the claim is asserted in a subsequent or untimely application
3-16 under Section 5(a)(4), Article 11.071, the court of criminal
3-17 appeals, shall determine whether the applicant has raised a
3-18 substantial doubt of the applicant's mental competency to be
3-19 executed on the basis of:
3-20 (1) the application, attached documents, and
3-21 responsive pleadings, if any; and
3-22 (2) if applicable, the presumption of competency under
3-23 Section 7.
3-24 (b) If the convicting court or the court of criminal appeals
3-25 determines that the applicant has made a substantial showing of
3-26 mental incompetency, the convicting court shall receive additional
3-27 proof on the issue as provided by Section 9, Article 11.071.
4-1 (c) If the convicting court and the court of criminal
4-2 appeals determines that the applicant has failed to make a
4-3 preliminary showing of mental incompetency, the court of criminal
4-4 appeals shall deny the claim for relief.
4-5 Sec. 6. EXAMINATION OF APPLICANT; APPOINTMENT OF EXPERTS.
4-6 By filing a claim for relief under this article, the applicant
4-7 specifically:
4-8 (1) consents to submit to an examination by one or
4-9 more mental health experts to be designated by the convicting
4-10 court; and
4-11 (2) waives any claim of privilege with respect to and
4-12 consents to the release of all mental health and medical records
4-13 maintained by the institutional division of the Texas Department of
4-14 Criminal Justice.
4-15 Sec. 7. PREVIOUS ADJUDICATION AS PRESUMPTION OF MENTAL
4-16 COMPETENCY. (a) If an applicant is determined to have previously
4-17 made a claim for relief based on the applicant's mental
4-18 incompetence to be executed, and has previously been determined to
4-19 be mentally competent to be executed, the previous adjudication
4-20 creates a presumption of mental competency and the applicant is not
4-21 entitled to a hearing on the claim of mental incompetency to be
4-22 executed, unless the applicant makes a prima facie showing of a
4-23 substantial change in circumstances sufficient to raise a
4-24 significant question as to the applicant's mental competency to be
4-25 executed at the time of filing the subsequent claim for relief.
4-26 (b) If an applicant is determined to have raised at the time
4-27 of the applicant's capital murder trial a claim that the applicant
5-1 was incompetent to stand trial and was determined at the time of
5-2 trial to be mentally competent to stand trial, the previous
5-3 adjudication creates a presumption of mental competency and the
5-4 applicant is not entitled to a hearing on the claim of mental
5-5 incompetency to be executed, unless the applicant makes a prima
5-6 facie showing of a substantial change in the circumstances
5-7 sufficient to raise a significant question as to the applicant's
5-8 mental competency to be executed at the time of filing the
5-9 subsequent application.
5-10 Sec. 8. EFFECT OF FINDING OF MENTAL INCOMPETENCE FOR
5-11 EXECUTION. If it is determined that the applicant is incompetent
5-12 to be executed, an order setting the applicant's execution date
5-13 must be withdrawn by the convicting court or stayed by the court of
5-14 criminal appeals. An execution date may not be set while the
5-15 applicant is incompetent. A determination of incompetency to be
5-16 executed does not otherwise affect the judgment of conviction and
5-17 sentence. If the applicant regains mental competency, the
5-18 convicting court shall make findings of fact and conclusions of law
5-19 regarding the applicant's competency and recommend that any stay of
5-20 execution entered by the court of criminal appeals be vacated. If
5-21 the court of criminal appeals accepts the findings of fact, it
5-22 shall vacate the stay of execution.
5-23 SECTION 3. This Act takes effect September 1, 1999.
5-24 SECTION 4. The importance of this legislation and the
5-25 crowded condition of the calendars in both houses create an
5-26 emergency and an imperative public necessity that the
5-27 constitutional rule requiring bills to be read on three several
6-1 days in each house be suspended, and this rule is hereby suspended.