SRC-BWC H.B. 236 77(R)   BILL ANALYSIS


Senate Research Center   H.B. 236
77R6172 GWK-FBy: Hinojosa (Ellis)
Criminal Justice
4/30/2001
Engrossed


DIGEST AND PURPOSE 

In 1989, the United States Supreme Court decided in Penry v. Lynaugh that
executing people who have mental retardation does not constitute cruel and
unusual punishment. The decision did, however, provide for jury
instructions to incorporate evidence of mental retardation as a possible
mitigating factor in the imposition of the death penalty. Although the
United States Supreme Court has not outlawed the execution of persons with
mental retardation, there is some concern among Texans that the execution
of these persons is unjust because persons with mental retardation may be
less culpable for their crimes or may not have the capacity to understand
the consequences of their actions.  H.B. 236 enables a defendant in a
capital case to request a hearing regarding whether the court shall appoint
disinterested experts to determine if a defendant is a person with mental
retardation and requires the court to sentence a defendant found by a jury
to be a person with mental retardation to confinement in the institutional
division of the Texas Department of Criminal Justice for life.  

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a
state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Part I, Code of Criminal Procedure, by adding Chapter
46B, as follows: 

CHAPTER 46B.  CAPITAL CASE:  EFFECT OF MENTAL RETARDATION

 Art. 46B.01.  DEFINITION.  Defines "mental retardation."

Art. 46B.02.  INTENT TO RAISE MENTAL RETARDATION AS ISSUE.  Authorizes a
defendant in a capital case to request the submission of a special issue
under Section 2(e) (2), Article 37.071, only if the defendant files a
notice of intent to request the submission with the court and the attorney
representing the state not later than the 30th day before the date the
trial commences. 

Art. 46B.03.  HEARING.  Requires the court, on receiving a notice under
Article 46B.02 of the defendant's intent to request the submission of a
special issue, to hold a hearing to determine whether to appoint
disinterested experts to examine the defendant to determine whether the
defendant is a person with mental retardation.  Requires the court, if the
court finds that the defendant has presented sufficient evidence to justify
the appointment of experts, to appoint disinterested experts experienced
and qualified in the field of diagnosing mental retardation to examine the
defendant and determine whether the defendant is a person with mental
retardation.  Requires the court to order the defendant to submit to an
examination by experts appointed under this article.   

SECTION 2.  Amends Article 37.071 Section 2(a), Code of Criminal Procedure,
to authorize a defendant who has been convicted of a capital offense or the
defendant's counsel to present evidence  during the sentencing phase of a
trial that the court deems relevant to sentencing, including evidence as to
whether the defendant is a person with mental retardation.  Prohibits the
court, the attorney representing the state, the defendant, or the
defendant's counsel from informing a juror or a prospective juror of the
effect of a failure of a jury to agree on issues submitted under Subsection
(b) or (e), rather than Subsection (c) or (e) of this article. 

SECTION 3.  Amends Article 37.071 Section 2(e), Code of Criminal Procedure,
to require a court, on the written request of the attorney representing the
defendant, to instruct the jury that if the jury returns an affirmative
finding to each issue submitted under Subsection (b), the jury is required
to answer whether the defendant is a person with mental retardation, if
raised by evidence existing in reports of disinterested experts prepared
under Article 46B.03(b).  Requires the court, on the written request of the
attorney representing the defendant, to instruct the jury that if the jury
answers that a circumstance or circumstances warrant that a sentence of
life imprisonment rather than a death sentence be imposed or answers that
the defendant is a person with mental retardation, the court will sentence
the defendant to imprisonment in the institutional division of the Texas
Department of Criminal Justice (TDCJ) for life. 

SECTION 4.  Amends Article 37.071 Section 2(f), Code of Criminal Procedure,
to require a court to charge the jury that in answering an issue submitted
under Subsection (e), the jury is required to consider mitigating evidence
to be evidence that a juror might regard as reducing the defendant's moral
blameworthiness, in respect to the issue submitted under Subsection (e)
(2). 

SECTION 5.  Amends Article 37.071 Section 2(g), Code of Criminal Procedure,
to require the court to sentence the defendant to death, if the jury
returns an affirmative finding on each issue submitted under Subsection (b)
and a negative finding on each, rather than an, issue submitted under
Subsection (e).  Requires the court to sentence the defendant to
confinement in the institutional division of TDCJ for life, if the jury
returns a negative finding on any issue submitted under Subsection (b) or
an affirmative finding on any, rather than an, issue submitted under
Subsection (e) or is unable to answer any issue submitted under Subsection
(b) or (c). 

SECTION 6.  Makes application of this Act prospective.

SECTION 7.  Effective date: September 1, 2001.