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. RESTRICTION ON DEATH PENALTY. Notwithstanding
1-12 Section 19.03, Penal Code, a defendant convicted of a capital
1-13 offense who is determined under this chapter to be a person with
1-14 mental retardation may not be sentenced to death.
1-15 Art. 46B.03. INTENT TO RAISE MENTAL RETARDATION AS ISSUE. A
1-16 defendant in a capital case may request the submission of a special
1-17 issue under Section 2(e)(2), Article 37.071, only if the defendant
1-18 files a notice of intent to request the submission with the court
1-19 and the attorney representing the state not later than the 30th day
1-20 before the date the trial commences.
1-21 Art. 46B.04. HEARING. (a) If a jury in a capital case
1-22 returns an affirmative finding on each issue submitted under
1-23 Section 2(b), Article 37.071, and a negative finding under Section
1-24 2(e)(2), Article 37.071, the defendant immediately after the jury
2-1 returns findings under Article 37.071 may file a petition for a
2-2 hearing described by Subsection (c).
2-3 (b) On receipt of a petition under Subsection (a), the court
2-4 shall appoint two disinterested experts experienced and qualified
2-5 in the field of diagnosing mental retardation to examine the
2-6 defendant and determine whether the defendant is a person with
2-7 mental retardation. The court shall order the defendant to submit
2-8 to an examination by experts appointed under this article.
2-9 (c) After the examination of the defendant by the experts
2-10 appointed under this article, the court in a hearing shall consider
2-11 the findings of those experts and the findings of other experts, if
2-12 any, offered by the attorney representing the state or the
2-13 defendant.
2-14 (d) If after considering all findings offered under
2-15 Subsection (c) the court finds by a preponderance of the evidence
2-16 that the defendant is a person with mental retardation, the court
2-17 shall sentence the defendant to imprisonment as provided by Section
2-18 2(j), Article 37.071. If the court does not find by a
2-19 preponderance of the evidence that the defendant is a person with
2-20 mental retardation, the court shall sentence the defendant to death
2-21 as provided by Section 2(g), Article 37.071.
2-22 Art. 46B.05. APPEAL. (a) The defendant and the state are
2-23 entitled to appeal a finding of a court described by Article
2-24 46B.04(d).
2-25 (b) The court of criminal appeals shall adopt rules as
2-26 necessary for the administration of the appeals process established
2-27 by this article.
3-1 (c) An appeal under this article is a direct appeal to the
3-2 court of criminal appeals, and the court of criminal appeals, as
3-3 provided by court rule, shall give priority to the review of an
3-4 appeal under this article over other cases before the court.
3-5 SECTION 2. Section 2(a), Article 37.071, Code of Criminal
3-6 Procedure, is amended to read as follows:
3-7 (a) If a defendant is tried for a capital offense in which
3-8 the state seeks the death penalty, on a finding that the defendant
3-9 is guilty of a capital offense, the court shall conduct a separate
3-10 sentencing proceeding to determine whether the defendant shall be
3-11 sentenced to death or life imprisonment. The proceeding shall be
3-12 conducted in the trial court and, except as provided by Article
3-13 44.29(c) [of this code], before the trial jury as soon as
3-14 practicable. In the proceeding, evidence may be presented by the
3-15 state and the defendant or the defendant's counsel as to any matter
3-16 that the court deems relevant to sentence, including evidence of
3-17 the defendant's background or character or the circumstances of the
3-18 offense that mitigates against the imposition of the death penalty
3-19 and including evidence as to whether the defendant is a person with
3-20 mental retardation. This subsection shall not be construed to
3-21 authorize the introduction of any evidence secured in violation of
3-22 the Constitution of the United States or of the State of Texas.
3-23 The state and the defendant or the defendant's counsel shall be
3-24 permitted to present argument for or against sentence of death.
3-25 The court, the attorney representing the state, the defendant, or
3-26 the defendant's counsel may not inform a juror or a prospective
3-27 juror of the effect of a failure of a jury to agree on issues
4-1 submitted under Subsection (b) [(c)] or (e) [of this article].
4-2 SECTION 3. Section 2(e), Article 37.071, Code of Criminal
4-3 Procedure, is amended to read as follows:
4-4 (e)(1) The court shall instruct the jury that if the jury
4-5 returns an affirmative finding to each issue submitted under
4-6 Subsection (b) [of this article], it shall answer the following
4-7 issue:
4-8 Whether, taking into consideration all of the evidence,
4-9 including the circumstances of the offense, the defendant's
4-10 character and background, and the personal moral culpability of the
4-11 defendant, there is a sufficient mitigating circumstance or
4-12 circumstances to warrant that a sentence of life imprisonment
4-13 rather than a death sentence be imposed.
4-14 (2) If raised by the evidence, the court, on the
4-15 written request of the attorney representing the defendant, shall
4-16 instruct the jury that if the jury returns an affirmative finding
4-17 to each issue submitted under Subsection (b), the jury shall answer
4-18 the following issue:
4-19 Whether the defendant is a person with mental retardation.
4-20 (3) The court, on the written request of the attorney
4-21 representing the defendant, shall:
4-22 (A) instruct the jury that if the jury answers
4-23 that a circumstance or circumstances warrant that a sentence of
4-24 life imprisonment rather than a death sentence be imposed or
4-25 answers that the defendant is a person with mental retardation, the
4-26 court will sentence the defendant to imprisonment in the
4-27 institutional division of the Texas Department of Criminal Justice
5-1 for life; and
5-2 (B) charge the jury in writing as follows:
5-3 "Under the law applicable in this case, if the defendant is
5-4 sentenced to imprisonment in the institutional division of the
5-5 Texas Department of Criminal Justice for life, the defendant will
5-6 become eligible for release on parole, but not until the actual
5-7 time served by the defendant equals 40 years, without consideration
5-8 of any good conduct time. It cannot accurately be predicted how
5-9 the parole laws might be applied to this defendant if the defendant
5-10 is sentenced to a term of imprisonment for life because the
5-11 application of those laws will depend on decisions made by prison
5-12 and parole authorities, but eligibility for parole does not
5-13 guarantee that parole will be granted."
5-14 SECTION 4. Section 2(f), Article 37.071, Code of Criminal
5-15 Procedure, is amended to read as follows:
5-16 (f) The court shall charge the jury that in answering an
5-17 [the] issue submitted under Subsection (e) [of this article], the
5-18 jury:
5-19 (1) shall answer the issue "yes" or "no";
5-20 (2) may not answer the issue "no" unless it agrees
5-21 unanimously and may not answer the issue "yes" unless 10 or more
5-22 jurors agree;
5-23 (3) need not agree on what particular evidence
5-24 supports an affirmative finding on the issue; and
5-25 (4) in respect to the issue submitted under Subsection
5-26 (e)(1) or (e)(2), shall consider mitigating evidence to be evidence
5-27 that a juror might regard as reducing the defendant's moral
6-1 blameworthiness.
6-2 SECTION 5. Section 2, Article 37.071, Code of Criminal
6-3 Procedure, is amended by amending Subsection (g) and adding
6-4 Subsection (j) to read as follows:
6-5 (g) If the jury returns an affirmative finding on each issue
6-6 submitted under Subsection (b) [of this article] and a negative
6-7 finding on each [an] issue submitted under Subsection (e) [of this
6-8 article], except as provided by Subsection (j) the court shall
6-9 sentence the defendant to death. If the jury returns a negative
6-10 finding on any issue submitted under Subsection (b) [of this
6-11 article] or an affirmative finding on any [an] issue submitted
6-12 under Subsection (e) [of this article] or is unable to answer any
6-13 issue submitted under Subsection (b) or (e) [of this article], the
6-14 court shall sentence the defendant to imprisonment [confinement] in
6-15 the institutional division of the Texas Department of Criminal
6-16 Justice for life.
6-17 (j) If as provided by Article 46B.04 the court finds by a
6-18 preponderance of the evidence that the defendant is a person with
6-19 mental retardation, the court shall sentence the defendant to
6-20 imprisonment in the institutional division of the Texas Department
6-21 of Criminal Justice for life.
6-22 SECTION 6. The change in law made by this Act applies only to
6-23 a capital case that commences on or after the effective date of
6-24 this Act. A capital case that commences before the effective date
6-25 of this Act is covered by the law in effect when the case
6-26 commenced, and the former law is continued in effect for that
6-27 purpose.
7-1 SECTION 7. This Act takes effect September 1, 2001.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 236 was passed by the House on April
24, 2001, by a non-record vote; that the House refused to concur in
Senate amendments to H.B. No. 236 on May 21, 2001, and requested
the appointment of a conference committee to consider the
differences between the two houses; and that the House adopted the
conference committee report on H.B. No. 236 on May 26, 2001, by the
following vote: Yeas 80, Nays 56, 1 present, not voting.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 236 was passed by the Senate, with
amendments, on May 16, 2001, by a viva-voce vote; at the request of
the House, the Senate appointed a conference committee to consider
the differences between the two houses; and that the Senate adopted
the conference committee report on H.B. No. 236 on May 26, 2001, by
the following vote: Yeas 20, Nays 9, 1 present, not voting.
_______________________________
Secretary of the Senate
APPROVED: __________________________
Date
__________________________
Governor