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.