HBA-EDN, AMW C.S.H.B. 236 77(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 236
By: Hinojosa
Criminal Jurisprudence
3/12/2001
Committee Report (Substituted)



BACKGROUND 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.  C.S.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

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

ANALYSIS

C.S.H.B. 236 amends the Code of Criminal Procedure to authorize a defendant
in a capital case to request the submission of a special issue regarding
whether the defendant is a person with mental retardation (issue) 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.  The bill requires the court, on
receiving a notice of the defendant's intent to request the submission of
an 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.  If the court finds that the defendant has
presented sufficient evidence to justify the appointment of experts, the
bill requires the court 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.  The bill also requires the court to order the defendant to
submit to an examination by experts appointed by the court. 

The bill authorizes the state and the defendant or the defendant's counsel,
in the sentencing proceeding to determine whether the defendant shall be
sentenced to death or life imprisonment, to present evidence as to whether
the defendant is a person with mental retardation.  If raised by evidence
existing in reports of disinterested experts appointed by the court, the
bill requires the 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, the jury is required to
answer the issue of whether the defendant is a person with mental
retardation.  The bill requires the court, on the written request of the
attorney representing the defendant, to instruct the jury that if the jury
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 for life.   

C.S.H.B. 236 also requires the court to charge the jury,  in respect to
answering the issue regarding whether the defendant is a person with mental
retardation, that the jury is required to consider mitigating evidence to
be evidence that a juror might regard as reducing the defendant's moral
blameworthiness.  The bill requires the court to sentence the defendant to
confinement in the institutional division of the Texas Department of
Criminal Justice for life if the jury returns an affirmative finding
regarding whether the defendant is a person with mental retardation or is
unable to answer whether the defendant is a person with mental retardation. 

EFFECTIVE DATE

September 1, 2001.

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 236 is similar to the original bill in that the substitute
requires a court to sentence the defendant to confinement in the
institutional division of the Texas Department of Criminal Justice for life
for a capital offense if the defendant is found to be a person with mental
retardation and requires a hearing to determine whether the defendant is a
person with mental retardation.  The substitute removes the provision in
the original bill which requires the judge hearing the capital case to
determine whether the defendant is a person with mental retardation.  The
substitute differs from the original bill by requiring the court to appoint
disinterested experts, if the court finds sufficient evidence to justify
the appointment, to examine the defendant and determine whether the
defendant is a person with mental retardation.  The substitute removes
provisions from the original bill regarding burden of proof,  procedures
for the hearing to determine whether the defendant is a person with mental
retardation, and procedures for the trial of a defendant who is found by
the judge not to be a person with mental retardation.  The substitute adds
provisions regarding the requirements of the court, disinterested experts
appointed by the court, and the jury in determining whether the defendant
is a person with mental retardation.