By Hinojosa, Gallego, Keel, Chavez H.B. No. 236
77R6172 GWK-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the applicability of the death penalty to a capital
1-3 offense committed by a person with mental retardation.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Part I, Code of Criminal Procedure, is amended by
1-6 adding Chapter 46B to read as follows:
1-7 CHAPTER 46B. CAPITAL CASE: EFFECT OF MENTAL RETARDATION
1-8 Art. 46B.01. DEFINITION. In this chapter, "mental
1-9 retardation" has the meaning assigned by Section 591.003, Health
1-10 and Safety Code.
1-11 Art. 46B.02. INTENT TO RAISE MENTAL RETARDATION AS ISSUE. A
1-12 defendant in a capital case may request the submission of a special
1-13 issue under Section 2(e)(2), Article 37.071, only if the defendant
1-14 files a notice of intent to request the submission with the court
1-15 and the attorney representing the state not later than the 30th day
1-16 before the date the trial commences.
1-17 Art. 46B.03. HEARING. (a) On receiving a notice under
1-18 Article 46B.02 of the defendant's intent to request the submission
1-19 of a special issue, the court shall hold a hearing to determine
1-20 whether to appoint disinterested experts to examine the defendant
1-21 to determine whether the defendant is a person with mental
1-22 retardation.
1-23 (b) If the court finds that the defendant has presented
1-24 sufficient evidence to justify the appointment of experts, the
2-1 court shall appoint disinterested experts experienced and qualified
2-2 in the field of diagnosing mental retardation to examine the
2-3 defendant and determine whether the defendant is a person with
2-4 mental retardation. The court shall order the defendant to submit
2-5 to an examination by experts appointed under this article.
2-6 SECTION 2. Section 2(a), Article 37.071, Code of Criminal
2-7 Procedure, is amended to read as follows:
2-8 (a) If a defendant is tried for a capital offense in which
2-9 the state seeks the death penalty, on a finding that the defendant
2-10 is guilty of a capital offense, the court shall conduct a separate
2-11 sentencing proceeding to determine whether the defendant shall be
2-12 sentenced to death or life imprisonment. The proceeding shall be
2-13 conducted in the trial court and, except as provided by Article
2-14 44.29(c) [of this code], before the trial jury as soon as
2-15 practicable. In the proceeding, evidence may be presented by the
2-16 state and the defendant or the defendant's counsel as to any matter
2-17 that the court deems relevant to sentence, including evidence of
2-18 the defendant's background or character or the circumstances of the
2-19 offense that mitigates against the imposition of the death penalty
2-20 and including evidence as to whether the defendant is a person with
2-21 mental retardation. This subsection shall not be construed to
2-22 authorize the introduction of any evidence secured in violation of
2-23 the Constitution of the United States or of the State of Texas.
2-24 The state and the defendant or the defendant's counsel shall be
2-25 permitted to present argument for or against sentence of death.
2-26 The court, the attorney representing the state, the defendant, or
2-27 the defendant's counsel may not inform a juror or a prospective
3-1 juror of the effect of a failure of a jury to agree on issues
3-2 submitted under Subsection (b) [(c)] or (e) [of this article].
3-3 SECTION 3. Section 2(e), Article 37.071, Code of Criminal
3-4 Procedure, is amended to read as follows:
3-5 (e)(1) The court shall instruct the jury that if the jury
3-6 returns an affirmative finding to each issue submitted under
3-7 Subsection (b) [of this article], it shall answer the following
3-8 issue:
3-9 Whether, taking into consideration all of the evidence,
3-10 including the circumstances of the offense, the defendant's
3-11 character and background, and the personal moral culpability of the
3-12 defendant, there is a sufficient mitigating circumstance or
3-13 circumstances to warrant that a sentence of life imprisonment
3-14 rather than a death sentence be imposed.
3-15 (2) If raised by evidence existing in reports of
3-16 disinterested experts prepared under Article 46B.03(b), the court,
3-17 on the written request of the attorney representing the defendant,
3-18 shall instruct the jury that if the jury returns an affirmative
3-19 finding to each issue submitted under Subsection (b), the jury
3-20 shall answer the following issue:
3-21 Whether the defendant is a person with mental retardation.
3-22 (3) The court, on the written request of the attorney
3-23 representing the defendant, shall:
3-24 (A) instruct the jury that if the jury answers
3-25 that a circumstance or circumstances warrant that a sentence of
3-26 life imprisonment rather than a death sentence be imposed or
3-27 answers that the defendant is a person with mental retardation, the
4-1 court will sentence the defendant to imprisonment in the
4-2 institutional division of the Texas Department of Criminal Justice
4-3 for life; and
4-4 (B) charge the jury in writing as follows:
4-5 "Under the law applicable in this case, if the defendant is
4-6 sentenced to imprisonment in the institutional division of the
4-7 Texas Department of Criminal Justice for life, the defendant will
4-8 become eligible for release on parole, but not until the actual
4-9 time served by the defendant equals 40 years, without consideration
4-10 of any good conduct time. It cannot accurately be predicted how
4-11 the parole laws might be applied to this defendant if the defendant
4-12 is sentenced to a term of imprisonment for life because the
4-13 application of those laws will depend on decisions made by prison
4-14 and parole authorities, but eligibility for parole does not
4-15 guarantee that parole will be granted."
4-16 SECTION 4. Section 2(f), Article 37.071, Code of Criminal
4-17 Procedure, is amended to read as follows:
4-18 (f) The court shall charge the jury that in answering an
4-19 [the] issue submitted under Subsection (e) [of this article], the
4-20 jury:
4-21 (1) shall answer the issue "yes" or "no";
4-22 (2) may not answer the issue "no" unless it agrees
4-23 unanimously and may not answer the issue "yes" unless 10 or more
4-24 jurors agree;
4-25 (3) need not agree on what particular evidence
4-26 supports an affirmative finding on the issue; and
4-27 (4) in respect to the issue submitted under Subsection
5-1 (e)(2), shall consider mitigating evidence to be evidence that a
5-2 juror might regard as reducing the defendant's moral
5-3 blameworthiness.
5-4 SECTION 5. Section 2(g), Article 37.071, Code of Criminal
5-5 Procedure, is amended to read as follows:
5-6 (g) If the jury returns an affirmative finding on each issue
5-7 submitted under Subsection (b) [of this article] and a negative
5-8 finding on each [an] issue submitted under Subsection (e) [of this
5-9 article], the court shall sentence the defendant to death. If the
5-10 jury returns a negative finding on any issue submitted under
5-11 Subsection (b) [of this article] or an affirmative finding on any
5-12 [an] issue submitted under Subsection (e) [of this article] or is
5-13 unable to answer any issue submitted under Subsection (b) or (e)
5-14 [of this article], the court shall sentence the defendant to
5-15 confinement in the institutional division of the Texas Department
5-16 of Criminal Justice for life.
5-17 SECTION 6. The change in law made by this Act applies only to
5-18 a capital case that commences on or after the effective date of
5-19 this Act. A capital case that commences before the effective date
5-20 of this Act is covered by the law in effect when the case
5-21 commenced, and the former law is continued in effect for that
5-22 purpose.
5-23 SECTION 7. This Act takes effect September 1, 2001.