By Turner of Harris                                   H.B. No. 1247
         77R4368 GWK-D                           
                                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.  The 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(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     in writing that the judge hearing the case hold a hearing to
1-18     determine whether the defendant was a person with mental
1-19     retardation at the time of 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.  (a)  At a hearing under this
1-24     chapter, 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           (b)  A defendant who has an intelligence quotient of 65 or
 2-4     less is presumed to be a person who was a person with mental
 2-5     retardation at the time of the commission of the alleged offense.
 2-6           (c)  The state may offer evidence to rebut the presumption of
 2-7     mental retardation or the defendant's claim.
 2-8           Art. 46B.05.  EFFECT OF FINDING.  (a)  If the court finds
 2-9     that the defendant was a person with mental retardation at the time
2-10     of the commission of the alleged offense:
2-11                 (1)  the jury may consider that finding in determining
2-12     whether the defendant at that time had the mental state requisite
2-13     for conviction of the offense; and
2-14                 (2)  the defendant, if subsequently convicted of the
2-15     offense, is not subject to Article 37.071 and shall be sentenced to
2-16     life  imprisonment in the institutional division of the Texas
2-17     Department of Criminal Justice.
2-18           (b)  If the court finds that the defendant was not a person
2-19     with mental retardation at the time of the commission of the
2-20     alleged offense, the court shall conduct the trial in the same
2-21     manner as if a hearing under this chapter had not been held.  At
2-22     the trial of the offense the jury may not be informed of the fact
2-23     that the court has found under this article that the defendant was
2-24     not a person with mental retardation.  On the request of the
2-25     defendant, the judge shall permit the defendant to present at
2-26     either or both phases of the trial evidence of the defendant's
2-27     assertion of mental retardation.
 3-1           (c)  The court must, not later than 10 days before the date
 3-2     on which the trial of the offense under Section 19.03, Penal Code,
 3-3     commences, make the finding described by Subsection (b) or announce
 3-4     that the court will not make the finding.  All findings of fact and
 3-5     conclusions of law made by the court must be entered in the record
 3-6     of the case.
 3-7           Art. 46B.06.  JURY FINDING.  At the punishment phase of the
 3-8     trial, the defendant may request the jury to determine whether the
 3-9     defendant was a person with mental retardation at the time of the
3-10     commission of the alleged offense.  If the jury determines the
3-11     issue in the affirmative, the judge shall sentence the defendant to
3-12     life imprisonment in the institutional division of the Texas
3-13     Department of Criminal Justice.
3-14           Art. 46B.07.  APPOINTMENT OF DISINTERESTED EXPERTS.  On the
3-15     request of either party or on the court's own motion, the court
3-16     shall appoint disinterested experts experienced and qualified in
3-17     the field of diagnosing mental retardation to examine the defendant
3-18     and determine whether the defendant is a person with mental
3-19     retardation.  The court may order the defendant to submit to an
3-20     examination by experts appointed under this article.
3-21           Art. 46B.08.  INTERLOCUTORY APPEAL.  (a)  The defendant and
3-22     the state are entitled to appeal an order of a court making a
3-23     finding described by Article 46B.05(b) or the court's decision not
3-24     to make a finding under that article.
3-25           (b)  The court of criminal appeals shall adopt rules as
3-26     necessary for the administration of the appeals process established
3-27     by this article.
 4-1           (c)  An appeal under this article is a direct appeal to the
 4-2     court of criminal appeals, and the court of criminal appeals, as
 4-3     provided by court rule, shall give priority to the review of an
 4-4     appeal under this article over other cases before the court.
 4-5           SECTION 2.  (a)  This Act takes effect September 1, 2001, and
 4-6     applies only to an offense committed on or after the effective date
 4-7     of this Act.  For purposes of this section, an offense is committed
 4-8     before the effective date of this Act if any element of the offense
 4-9     occurs before the effective date.
4-10           (b)  An offense committed before the effective date of this
4-11     Act is covered by the law in effect when the offense was committed,
4-12     and the former law is continued in effect for that purpose.
4-13           (c)  If the federal constitution or the Texas Constitution is
4-14     authoritatively construed to prohibit the purely prospective
4-15     application of Chapter 46B, Code of Criminal Procedure, as added by
4-16     this Act, the chapter has no force and applies neither
4-17     prospectively nor retroactively.