By Ellis S.B. No. 686
77R3106 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 that the judge hearing the case hold a hearing to determine whether
1-18 the defendant was a person with mental retardation at the time of
1-19 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 70 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. SENTENCING ALTERNATIVES. (a) If the court
2-9 finds that the defendant was a person with mental retardation at
2-10 the time of the commission of the alleged offense and the defendant
2-11 is subsequently convicted of the offense, Article 37.071 does not
2-12 apply to the defendant, and the court shall sentence the defendant
2-13 to life imprisonment in the institutional division of the Texas
2-14 Department of Criminal Justice.
2-15 (b) If the court finds that the defendant was not a person
2-16 with mental retardation at the time of the commission of the
2-17 alleged offense, the court shall conduct the trial in the same
2-18 manner as if a hearing under this chapter had not been held. At
2-19 the trial of the offense:
2-20 (1) the jury may not be informed of the fact that the
2-21 court has found under this article that the defendant was not a
2-22 person with mental retardation; and
2-23 (2) the defendant may present at trial evidence of
2-24 mental disability as permitted by Article 37.071.
2-25 (c) The court must, before the trial of the offense under
2-26 Section 19.03, Penal Code, commences, make the finding described by
2-27 Subsection (b) or announce that the court will not make the
3-1 finding.
3-2 Art. 46B.06. APPOINTMENT OF DISINTERESTED EXPERTS. On the
3-3 request of either party or on the court's own motion, the court
3-4 shall appoint disinterested experts experienced and qualified in
3-5 the field of diagnosing mental retardation to examine the defendant
3-6 and determine whether the defendant is a person with mental
3-7 retardation. The court may order the defendant to submit to an
3-8 examination by experts appointed under this article.
3-9 Art. 46B.07. INTERLOCUTORY APPEAL. (a) The defendant and
3-10 the state are entitled to appeal an order of a court making a
3-11 finding described by Article 46B.05(b) or the court's decision not
3-12 to make a finding under that article.
3-13 (b) The court of criminal appeals shall adopt rules as
3-14 necessary for the administration of the appeals process established
3-15 by this article.
3-16 (c) An appeal under this article is a direct appeal to the
3-17 court of criminal appeals, and the court of criminal appeals, as
3-18 provided by court rule, shall give priority to the review of an
3-19 appeal under this article over other cases before the court.
3-20 SECTION 2. Chapter 6, Penal Code, is amended by adding
3-21 Section 6.05 to read as follows:
3-22 Sec. 6.05. MENTAL RETARDATION AFFECTING DEATH SENTENCE. (a)
3-23 In this section, "mental retardation" has the meaning assigned by
3-24 Section 591.003, Health and Safety Code.
3-25 (b) A person may not be punished by death for an offense
3-26 committed while the person was a person with mental retardation.
3-27 (c) A person who is sentenced to death at a trial that
4-1 commences before September 1, 2001, may submit to the convicting
4-2 court a motion for a hearing on the issue of mental retardation, to
4-3 be conducted in the same manner as a hearing under Chapter 46B,
4-4 Code of Criminal Procedure. On a finding by the court that
4-5 documentary evidence supports an assertion that the person is a
4-6 person with mental retardation, the court may order a hearing that,
4-7 except for occurring after sentencing, is conducted in the same
4-8 manner as a hearing under Chapter 46B, Code of Criminal Procedure.
4-9 After making a finding as to whether the person is a person with
4-10 mental retardation, the court shall immediately forward a copy of
4-11 the finding to the court of criminal appeals.
4-12 SECTION 3. Chapter 46B, Code of Criminal Procedure, as added
4-13 by this Act, applies only to a trial that commences on or after the
4-14 effective date of this Act regardless of whether the alleged
4-15 offense was committed before, on, or after that date.
4-16 SECTION 4. This Act takes effect September 1, 2001.