By: Ellis, Moncrief S.B. No. 326
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the applicability of the death penalty to a capital
1-2 offense committed by a person with mental retardation.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. The Code of Criminal Procedure is amended by
1-5 adding Chapter 46B to read as follows:
1-6 CHAPTER 46B. CAPITAL CASE: EFFECT OF MENTAL RETARDATION
1-7 Art. 46B.01. DEFINITION. In this chapter, "mental
1-8 retardation" has the meaning assigned by Section 591.003, Health
1-9 and Safety Code.
1-10 Art. 46B.02. RESTRICTION ON DEATH PENALTY. Notwithstanding
1-11 Section 19.03(b), Penal Code, or Article 37.071, a defendant who at
1-12 the time of commission of a capital offense was a person with
1-13 mental retardation may not be sentenced to death.
1-14 Art. 46B.03. HEARING. (a) Counsel for a defendant in a
1-15 capital case, at any time before the trial commences, may request
1-16 that the judge hearing the case hold a hearing to determine whether
1-17 the defendant was a person with mental retardation at the time of
1-18 the commission of the alleged offense.
1-19 (b) On receipt of a request under Subsection (a), the court
1-20 shall notify all interested parties of the request and schedule a
1-21 hearing on the issue of mental retardation.
1-22 Art. 46B.04. BURDEN OF PROOF. (a) At a hearing under this
1-23 chapter, the burden is on the defendant to prove by a preponderance
1-24 of the evidence that the defendant was a person with mental
2-1 retardation at the time of the commission of the alleged offense.
2-2 (b) A defendant who has an intelligence quotient of 65 or
2-3 less is presumed to be a person who was a person with mental
2-4 retardation at the time of the commission of the alleged offense.
2-5 (c) The state may offer evidence to rebut the presumption of
2-6 mental retardation or the defendant's claim.
2-7 Art. 46B.05. SENTENCING ALTERNATIVES. (a) If the court
2-8 finds that the defendant was a person with mental retardation at
2-9 the time of the commission of the alleged offense and the defendant
2-10 is subsequently convicted of the offense, the provisions of Article
2-11 37.071 do not apply to the defendant, and the court shall sentence
2-12 the defendant to life imprisonment in the institutional division
2-13 of the Texas Department of Criminal Justice.
2-14 (b) If the court finds that the defendant was not a person
2-15 with mental retardation at the time of the commission of the
2-16 alleged offense, the court shall conduct the trial in the same
2-17 manner as if a hearing under this chapter had not been held. At
2-18 the trial of the offense:
2-19 (1) the jury may not be informed of the fact that the
2-20 court has found under this article that the defendant was not a
2-21 person with mental retardation; and
2-22 (2) the defendant may present at trial evidence of
2-23 mental disability as permitted by Article 37.071.
2-24 (c) The court must, not later than 10 days before the date
2-25 on which the trial of the offense under Section 19.03, Penal Code,
2-26 commences, make the finding described by Subsection (b) or announce
3-1 that the court will not make the finding.
3-2 Art. 46B.06. APPOINTMENT OF DISINTERESTED EXPERTS. On the
3-3 request of either party or on the court's own motion, the court
3-4 shall appoint disinterested experts experienced and qualified in
3-5 the field of diagnosing mental retardation to examine the defendant
3-6 and determine whether the defendant is a person with mental
3-7 retardation. The court may order the defendant to submit to an
3-8 examination by experts appointed under this article.
3-9 Art. 46B.07. INTERLOCUTORY APPEAL. (a) The defendant and
3-10 the state are entitled to appeal an order of a court making a
3-11 finding described by Article 46B.05(b) or the court's decision not
3-12 to make a finding under that article.
3-13 (b) The court of criminal appeals shall adopt rules as
3-14 necessary for the administration of the appeals process established
3-15 by this article.
3-16 (c) An appeal under this article is a direct appeal to the
3-17 court of criminal appeals, and the court of criminal appeals, as
3-18 provided by court rule, shall give priority to the review of an
3-19 appeal under this article over other cases before the court.
3-20 SECTION 2. (a) This Act takes effect September 1, 1999, and
3-21 applies only to an offense committed on or after the effective date
3-22 of this Act. For purposes of this section, an offense is committed
3-23 before the effective date of this Act if any element of the offense
3-24 occurs before the effective date.
3-25 (b) An offense committed before the effective date of this
3-26 Act is covered by the law in effect when the offense was committed,
4-1 and the former law is continued in effect for that purpose.
4-2 (c) If the federal constitution or the Texas Constitution
4-3 are authoritatively construed to prohibit the purely prospective
4-4 application of Chapter 46B, Code of Criminal Procedure, as added by
4-5 this Act, the chapter shall be deemed to have no force whatsoever
4-6 and apply neither prospectively nor retroactively.
4-7 SECTION 3. The importance of this legislation and the
4-8 crowded condition of the calendars in both houses create an
4-9 emergency and an imperative public necessity that the
4-10 constitutional rule requiring bills to be read on three several
4-11 days in each house be suspended, and this rule is hereby suspended.