1-1 By: Ellis, Moncrief S.B. No. 326 1-2 (In the Senate - Filed January 29, 1999; February 2, 1999, 1-3 read first time and referred to Committee on Criminal Justice; 1-4 April 26, 1999, reported adversely, with favorable Committee 1-5 Substitute by the following vote: Yeas 4, Nays 2; April 26, 1999, 1-6 sent to printer.) 1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 326 By: Whitmire 1-8 A BILL TO BE ENTITLED 1-9 AN ACT 1-10 relating to the applicability of the death penalty to a capital 1-11 offense committed by a person with mental retardation. 1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-13 SECTION 1. The Code of Criminal Procedure is amended by 1-14 adding Chapter 46B to read as follows: 1-15 CHAPTER 46B. CAPITAL CASE: EFFECT OF MENTAL RETARDATION 1-16 Art. 46B.01. DEFINITION. In this chapter, "mental 1-17 retardation" has the meaning assigned by Section 591.003, Health 1-18 and Safety Code. 1-19 Art. 46B.02. RESTRICTION ON DEATH PENALTY. Notwithstanding 1-20 Section 19.03(b), Penal Code, or Article 37.071, a defendant who at 1-21 the time of commission of a capital offense was a person with 1-22 mental retardation may not be sentenced to death. 1-23 Art. 46B.03. HEARING. (a) Counsel for a defendant in a 1-24 capital case, at any time before the trial commences, may request 1-25 that the judge hearing the case hold a hearing to determine whether 1-26 the defendant was a person with mental retardation at the time of 1-27 the commission of the alleged offense. 1-28 (b) On receipt of a request under Subsection (a), the court 1-29 shall notify all interested parties of the request and schedule a 1-30 hearing on the issue of mental retardation. 1-31 Art. 46B.04. BURDEN OF PROOF. (a) At a hearing under this 1-32 chapter, the burden is on the defendant to prove by a preponderance 1-33 of the evidence that the defendant was a person with mental 1-34 retardation at the time of the commission of the alleged offense. 1-35 (b) A defendant who has an intelligence quotient of 65 or 1-36 less is presumed to be a person who was a person with mental 1-37 retardation at the time of the commission of the alleged offense. 1-38 (c) The state may offer evidence to rebut the presumption of 1-39 mental retardation or the defendant's claim. 1-40 Art. 46B.05. SENTENCING ALTERNATIVES. (a) If the court 1-41 finds that the defendant was a person with mental retardation at 1-42 the time of the commission of the alleged offense and the defendant 1-43 is subsequently convicted of the offense, the provisions of Article 1-44 37.071 do not apply to the defendant, and the court shall sentence 1-45 the defendant to life imprisonment in the institutional division 1-46 of the Texas Department of Criminal Justice. 1-47 (b) If the court finds that the defendant was not a person 1-48 with mental retardation at the time of the commission of the 1-49 alleged offense, the court shall conduct the trial in the same 1-50 manner as if a hearing under this chapter had not been held. At 1-51 the trial of the offense: 1-52 (1) the jury may not be informed of the fact that the 1-53 court has found under this article that the defendant was not a 1-54 person with mental retardation; and 1-55 (2) the defendant may present at trial evidence of 1-56 mental disability as permitted by Article 37.071. 1-57 SECTION 2. This Act takes effect September 1, 1999. 1-58 SECTION 3. The importance of this legislation and the 1-59 crowded condition of the calendars in both houses create an 1-60 emergency and an imperative public necessity that the 1-61 constitutional rule requiring bills to be read on three several 1-62 days in each house be suspended, and this rule is hereby suspended. 1-63 * * * * *