By Hinojosa                                           H.B. No. 3246
         77R1982 KEL-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the authority of the court of criminal appeals to
 1-3     review certain trial court findings regarding a defendant's
 1-4     competency to be executed.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6           SECTION 1. Article 46.04, Code of Criminal Procedure, as
 1-7     added by Chapter 654, Acts of the 76th Legislature, Regular
 1-8     Session, 1999, is amended by amending Subsections (g), (i), (k),
 1-9     and (l) to read as follows:
1-10           (g)  If the trial court does not determine that the defendant
1-11     has made a substantial showing of incompetency, the court shall
1-12     deny the motion.  The denial of the motion is appealable by the
1-13     defendant to the court of criminal appeals and, if appealed to that
1-14     court, is to be reviewed under an abuse of discretion standard.  If
1-15     the denial of the motion is appealed, the clerk shall send the
1-16     appropriate documents immediately to the court of criminal appeals
1-17     for that court's review.  If the court of criminal appeals finds
1-18     that the trial court abused its discretion in denying the motion,
1-19     the court of criminal appeals shall:
1-20                 (1)  order the trial court to order at least two mental
1-21     health experts to examine the defendant using the standard
1-22     described by Subsection (h) to determine whether the defendant is
1-23     incompetent to be executed; and
1-24                 (2)  remand the case to the trial court for a
 2-1     competency hearing.
 2-2           (i)  Mental health experts who examine a defendant under this
 2-3     article shall provide within a time ordered by the trial court or,
 2-4     if applicable, the court of criminal appeals copies of their
 2-5     reports to the attorney representing the state, the attorney
 2-6     representing the defendant, and the trial court.
 2-7           (k)  On [If, on] the basis of reports provided under
 2-8     Subsection (i), the motion, any attached documents, any responsive
 2-9     pleadings, and any evidence introduced in the final competency
2-10     hearing, the trial court shall make [makes] a finding regarding the
2-11     defendant's competency [by a preponderance of the evidence that the
2-12     defendant is incompetent] to be executed.  The defendant must
2-13     establish by a preponderance of the evidence the defendant's
2-14     incompetency to be executed.
2-15           (l)  If the trial court finds under Subsection (k) that the
2-16     defendant is competent to be executed, the court may set an
2-17     execution date as otherwise provided by law.  The defendant may
2-18     appeal the trial court's finding of competency to the court of
2-19     criminal appeals.  A finding by the trial court under Subsection
2-20     (k) that the defendant is incompetent to be executed is subject to
2-21     automatic review by the court of criminal appeals.
2-22           (m)  If the finding regarding the defendant's competency to
2-23     be executed is appealed or is subject to automatic review, the
2-24     clerk shall send immediately to the court of criminal appeals in
2-25     accordance with Section 8(d), Article 11.071, the appropriate
2-26     documents for that court's review.  On review under this article,
2-27     the court of criminal appeals may reject the finding only if the
 3-1     finding is not supported by substantial evidence.
 3-2           (n)  If the court of criminal appeals rejects a finding of
 3-3     competency or affirms a finding of incompetency, the court shall
 3-4     determine [determination of] whether any existing execution date
 3-5     should be withdrawn and a stay of execution issued.  Otherwise, the
 3-6     court shall remand the case to the trial court to permit the
 3-7     setting of an execution date as otherwise provided by law.
 3-8           (o)  If a stay of execution is issued by the court of
 3-9     criminal appeals, the trial court periodically shall order that the
3-10     defendant be reexamined by mental health experts to determine
3-11     whether the defendant is no longer incompetent to be executed.
3-12           [(l)  If the trial court does not make the finding as
3-13     described by Subsection (k), the court may set an execution date as
3-14     otherwise provided by law.]
3-15           SECTION 2. (a)  The change in law made by this Act applies
3-16     only to a motion to determine a defendant's competency to be
3-17     executed that is filed on or after the effective date of this Act.
3-18           (b)  A motion to determine a defendant's competency to be
3-19     executed that is filed before the effective date of this Act is
3-20     covered by the law in effect when the motion was filed, and the
3-21     former law is continued in effect for that purpose.
3-22           SECTION 3. To the extent of any conflict, this Act prevails
3-23     over another Act of the 77th Legislature, Regular Session, 2001,
3-24     relating to nonsubstantive additions to and corrections in enacted
3-25     codes, except that if the other Act renumbers Article 46.04, Code
3-26     of Criminal Procedure, as added by Chapter 654, Acts of the 76th
3-27     Legislature, Regular Session, 1999, the renumbering provided in the
 4-1     nonsubstantive Act prevails.
 4-2           SECTION 4.  This Act takes effect immediately if it receives
 4-3     a vote of two-thirds of all the members elected to each house, as
 4-4     provided by Section 39, Article III, Texas Constitution.  If this
 4-5     Act does not receive the vote necessary for immediate effect, this
 4-6     Act takes effect September 1, 2001.