Amend CSHB 236 by striking all below the enacting clause and substituting the following: SECTION 1. The Code of Criminal Procedure is amended by adding Chapter 46B to read as follows: CHAPTER 46B. CAPITAL CASE: EFFECT OF MENTAL RETARDATION Art. 46B.01. DEFINITION. In this chapter, "mental retardation" has the meaning assigned by Section 591.003, Health and Safety Code. Art. 46B.02. RESTRICTION ON DEATH PENALTY. Notwithstanding Section 19.03(b), Penal Code, or Article 37.071, a defendant who at the time of commission of a capital offense was a person with mental retardation is incomptent to be executed and may not be sentenced to death. The procedures described by Article 46.04 apply to a person who has been sentenced to death before the effective date of this chapter but who may have been a person with mental retardation at the time of the commission of the offense for which the person was sentenced. Art. 46B.03. HEARING. (a) Counsel for a defendant in a capital case, at any time before the trial commences, may request that the judge hearing the case hold a hearing limited to a determination as to whether the defendant was a person with mental retardation at the time of the commission of the alleged offense. (b) On receipt of a request under Subsection (a), the court shall notify all interested parties of the request and schedule a hearing on the sole issue of mental retardation. Art. 46B.04. BURDEN OF PROOF. At a hearing under this chapter, the burden is on the defendant to prove by a preponderance of the evidence that the defendant was a person with mental retardation at the time of the commission of the alleged offense. The state may offer evidence to rebut the defendant's claim. Art. 46B.05. SENTENCING ALTERNATIVES. (a) If the court finds that the defendant was a person with mental retardation at the time of the commission of the alleged offense and the defendant is subsequently convicted of the offense, the court shall sentence the defendant in accourdance with the provisions of Article 37.071, except that the court may not sentence the defendant to death. (b) If the court finds that the defendant was not a person with mental retardation at the time of the commission of the alleged offense, the court shall conduct the trial in the same manner as if a hearing under this chapter had not been held. At the trial of the offense: (1) the jury may not be informed of the fact that the court has found under this chapter that the defendant was not a person with mental retardation; and (2) the defendant may present at trial evidence of mental disability as permitted by Article 37.071. SECTION 4. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2001.