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 * * * * *