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