1-1     By:  Hinojosa, et al. (Senate Sponsor - Ellis)         H.B. No. 236
 1-2           (In the Senate - Received from the House April 25, 2001;
 1-3     April 26, 2001, read first time and referred to Committee on
 1-4     Criminal Justice; May 10, 2001, reported adversely, with favorable
 1-5     Committee Substitute by the following vote:  Yeas 4, Nays 1;
 1-6     May 10, 2001, sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR H.B. No. 236                 By:  Moncrief
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to the applicability of the death penalty to a capital
1-11     offense committed by a person with mental retardation.
1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13           SECTION 1.  The Code of Criminal Procedure is amended by
1-14     adding Chapter 46B to read as follows:
1-15           CHAPTER 46B. CAPITAL CASE: EFFECT OF MENTAL RETARDATION
1-16           Art. 46B.01.  DEFINITION.  In this chapter, "mental
1-17     retardation" has the meaning assigned by Section 591.003, Health
1-18     and Safety Code.
1-19           Art. 46B.02.  RESTRICTION ON DEATH PENALTY.  Notwithstanding
1-20     Section 19.03(b), Penal Code, or Article 37.071, a defendant who at
1-21     the time of commission of  a capital offense was a person with
1-22     mental retardation may not be sentenced to death.
1-23           Art. 46B.03.  HEARING.  (a) Counsel for a defendant in a
1-24     capital case, at any time before the trial commences, may request
1-25     that the judge hearing the case hold a hearing to determine whether
1-26     the defendant was a person with mental retardation at the time of
1-27     the commission of the alleged offense.
1-28           (b)  On receipt of a request under Subsection (a), the court
1-29     shall notify all interested parties of the request and schedule a
1-30     hearing on the issue of mental retardation.
1-31           Art. 46B.04.  BURDEN OF PROOF.  (a) At a hearing under this
1-32     chapter, the burden is on the defendant to prove by a preponderance
1-33     of the evidence that the defendant was a person with mental
1-34     retardation as defined by Section 591.003, Health and Safety Code,
1-35     at the time of the commission of the alleged offense.
1-36           (b)  The state may offer evidence to rebut the presumption of
1-37     mental retardation or the defendant's claim.
1-38           Art. 46B.05.  SENTENCING ALTERNATIVES.  (a) If the court
1-39     finds that the defendant was a person with mental retardation at
1-40     the time of the commission of the alleged offense and the defendant
1-41     is subsequently convicted of the offense, Article 37.071 does not
1-42     apply to the defendant, except that the court shall sentence the
1-43     defendant in the same manner as if a jury in the case had returned
1-44     an affirmative finding on the issue of mitigation under Article
1-45     37.071.
1-46           (b)  If the court finds that the defendant was not a person
1-47     with mental retardation at the time of the commission of the
1-48     alleged offense, the court shall conduct the trial in the same
1-49     manner as if a hearing under this chapter had not been held.  At
1-50     the trial of the offense:
1-51                 (1)  the jury may not be informed of the fact that the
1-52     court has found under this article that the defendant was not a
1-53     person with mental retardation; and
1-54                 (2)  the defendant may present at trial evidence of
1-55     mental disability as permitted by Article 37.071.
1-56           (c)  The court must, before the trial of the offense under
1-57     Section 19.03, Penal Code, commences, make the finding described by
1-58     Subsection (b) or announce that the court will not make the
1-59     finding.
1-60           Art. 46B.06.  APPOINTMENT OF DISINTERESTED EXPERTS.  On the
1-61     request of either party or on the court's own motion, the court
1-62     shall appoint disinterested experts experienced and qualified in
1-63     the field of diagnosing mental retardation to examine the defendant
1-64     and determine whether the defendant is a person with mental
 2-1     retardation.  The court may order the defendant to submit to an
 2-2     examination by experts appointed under this article.
 2-3           Art. 46B.07.  INTERLOCUTORY APPEAL.  (a) The defendant and
 2-4     the state are entitled to appeal an order of a court making a
 2-5     finding described by Article 46B.05(b) or the court's decision not
 2-6     to make a finding under that article.
 2-7           (b)  The court of criminal appeals shall adopt rules as
 2-8     necessary for the administration of the appeals process established
 2-9     by this article.
2-10           (c)  An appeal under this article is a direct appeal to the
2-11     court of criminal appeals, and the court of criminal appeals, as
2-12     provided by court rule, shall give priority to the review of an
2-13     appeal under this article over other cases before the court.
2-14           SECTION 2. Chapter 46B, Code of Criminal Procedure, as added
2-15     by this Act, applies only to a trial that commences on or after the
2-16     effective date of this Act regardless of whether the alleged
2-17     offense was committed before, on, or after that date.
2-18           SECTION 3.  This Act takes effect September 1, 2001.
2-19                                  * * * * *