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.