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.