By Hinojosa                                            H.B. No. 236
         77R770 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.  Title I, Code of Criminal Procedure, is amended
 1-6     by 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(b), Penal Code, or Article 37.071, a defendant who at
1-13     the time of commission of  a capital offense was a person with
1-14     mental retardation may not be sentenced to death.
1-15           Art. 46B.03.  HEARING.  (a)  Counsel for a defendant in a
1-16     capital case, at any time before the trial commences, may request
1-17     that the judge hearing the case hold a hearing to determine whether
1-18     the defendant was a person with mental retardation at the time of
1-19     the commission of the alleged offense.
1-20           (b)  On receipt of a request under Subsection (a), the court
1-21     shall notify all interested parties of the request and schedule a
1-22     hearing on the issue of mental retardation.
1-23           Art. 46B.04.  BURDEN OF PROOF.  At a hearing under this
1-24     article, the burden is on the defendant to prove by a preponderance
 2-1     of the evidence that the defendant was a person with mental
 2-2     retardation at the time of the commission of the alleged offense.
 2-3     The state may offer evidence to rebut the defendant's claim.
 2-4           Art. 46B.05.  SENTENCING ALTERNATIVES.  (a)  If the court
 2-5     finds that the defendant was a person with mental retardation at
 2-6     the time of the commission of the alleged offense and the defendant
 2-7     is subsequently convicted of the offense, the provisions of Article
 2-8     37.071 do not apply to the defendant, and the court shall sentence
 2-9     the defendant to life  imprisonment in the institutional division
2-10     of the Texas Department of Criminal Justice.
2-11           (b)  If the court finds that the defendant was not a person
2-12     with mental retardation at the time of the commission of the
2-13     alleged offense, the court shall conduct the trial in the same
2-14     manner as if a hearing under this article had not been held.  At
2-15     the trial of the offense:
2-16                 (1)  the jury may not be informed of the fact that the
2-17     court has found under this article that the defendant was not a
2-18     person with mental retardation; and
2-19                 (2)  the defendant may present at trial evidence of
2-20     mental disability as permitted by Article 37.071.
2-21           SECTION 2.  This Act takes effect September 1, 2001.