78R4097 KEL-D
By: Gallego H.B. No. 664
A BILL TO BE ENTITLED
AN ACT
relating to the applicability of the death penalty to a capital
offense committed by a person with mental retardation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Part I, Code of Criminal Procedure, is amended by
adding Chapter 46C to read as follows:
CHAPTER 46C. CAPITAL CASE: EFFECT OF MENTAL RETARDATION
Art. 46C.01. DEFINITION. In this chapter, "mental
retardation" has the meaning assigned by Section 591.003, Health
and Safety Code.
Art. 46C.02. RESTRICTION ON DEATH PENALTY.
Notwithstanding Section 19.03, Penal Code, a defendant convicted of
a capital offense who is determined under this chapter to be a
person with mental retardation may not be sentenced to death.
Art. 46C.03. INTENT TO RAISE MENTAL RETARDATION AS ISSUE. A
defendant in a capital case may request the submission of a special
issue under Section 2(e)(2), Article 37.071, only if the defendant
files a notice of intent to request the submission with the court
and the attorney representing the state not later than the 30th day
before the date the trial commences.
Art. 46C.04. HEARING. (a) If a jury in a capital case
returns an affirmative finding on each issue submitted under
Section 2(b), Article 37.071, and a negative finding under Section
2(e)(2), Article 37.071, the defendant immediately after the jury
returns findings under Article 37.071 may file a petition for a
hearing described by Subsection (c).
(b) On receipt of a petition under Subsection (a), the court
shall appoint two disinterested experts experienced and qualified
in the field of diagnosing mental retardation to examine the
defendant and determine whether the defendant is a person with
mental retardation. The court shall order the defendant to submit
to an examination by experts appointed under this article.
(c) After the examination of the defendant by the experts
appointed under this article, the court in a hearing shall consider
the findings of those experts and the findings of other experts, if
any, offered by the attorney representing the state or the
defendant.
(d)(1) If after considering all findings offered under
Subsection (c) the court finds by a preponderance of the evidence
that the defendant is a person with mental retardation, the court
shall sentence the defendant to imprisonment as provided by Section
2(j), Article 37.071.
(2) If the court finds by a preponderance of the
evidence that the defendant is not a person with mental
retardation, the court shall sentence the defendant to death as
provided by Section 2(g), Article 37.071.
(3) If the court is unable to make a finding under
Subdivision (1) and is also unable to make a finding under
Subdivision (2), the court shall sentence the defendant to
imprisonment as provided by Section 2(j), Article 37.071.
Art. 46C.05. APPEAL. (a) The defendant and the state are
entitled to appeal a finding of a court described by Article
46C.04(d).
(b) The court of criminal appeals shall adopt rules as
necessary for the administration of the appeals process established
by this article.
(c) An appeal under this article is a direct appeal to the
court of criminal appeals, and the court of criminal appeals, as
provided by court rule, shall give priority to the review of an
appeal under this article over other cases before the court.
SECTION 2. Section 2(a)(1), Article 37.071, Code of
Criminal Procedure, is amended to read as follows:
(a)(1) If a defendant is tried for a capital offense in
which the state seeks the death penalty, on a finding that the
defendant is guilty of a capital offense, the court shall conduct a
separate sentencing proceeding to determine whether the defendant
shall be sentenced to death or life imprisonment. The proceeding
shall be conducted in the trial court and, except as provided by
Article 44.29(c) [of this code], before the trial jury as soon as
practicable. In the proceeding, evidence may be presented by the
state and the defendant or the defendant's counsel as to any matter
that the court deems relevant to sentence, including evidence of
the defendant's background or character or the circumstances of the
offense that mitigates against the imposition of the death penalty
and including evidence as to whether the defendant is a person with
mental retardation. This subdivision shall not be construed to
authorize the introduction of any evidence secured in violation of
the Constitution of the United States or of the State of Texas. The
state and the defendant or the defendant's counsel shall be
permitted to present argument for or against sentence of death. The
court, the attorney representing the state, the defendant, or the
defendant's counsel may not inform a juror or a prospective juror of
the effect of a failure of a jury to agree on issues submitted under
Subsection (b) [(c)] or (e) [of this article].
SECTION 3. Section 2(e), Article 37.071, Code of Criminal
Procedure, is amended to read as follows:
(e)(1) The court shall instruct the jury that if the jury
returns an affirmative finding to each issue submitted under
Subsection (b) [of this article], it shall answer the following
issue:
Whether, taking into consideration all of the evidence,
including the circumstances of the offense, the defendant's
character and background, and the personal moral culpability of the
defendant, there is a sufficient mitigating circumstance or
circumstances to warrant that a sentence of life imprisonment
rather than a death sentence be imposed.
(2) If raised by the evidence, the court, on the
written request of the attorney representing the defendant, shall
instruct the jury that if the jury returns an affirmative finding to
each issue submitted under Subsection (b), the jury shall answer
the following issue:
Whether the defendant is a person with mental retardation.
(3) The court, on the written request of the attorney
representing the defendant, shall:
(A) instruct the jury that if the jury answers
that a circumstance or circumstances warrant that a sentence of
life imprisonment rather than a death sentence be imposed or
answers that the defendant is a person with mental retardation, the
court will sentence the defendant to imprisonment in the
institutional division of the Texas Department of Criminal Justice
for life; and
(B) charge the jury in writing as follows:
"Under the law applicable in this case, if the defendant is
sentenced to imprisonment in the institutional division of the
Texas Department of Criminal Justice for life, the defendant will
become eligible for release on parole, but not until the actual time
served by the defendant equals 40 years, without consideration of
any good conduct time. It cannot accurately be predicted how the
parole laws might be applied to this defendant if the defendant is
sentenced to a term of imprisonment for life because the
application of those laws will depend on decisions made by prison
and parole authorities, but eligibility for parole does not
guarantee that parole will be granted."
SECTION 4. Section 2(f), Article 37.071, Code of Criminal
Procedure, is amended to read as follows:
(f) The court shall charge the jury that in answering an
[the] issue submitted under Subsection (e) [of this article], the
jury:
(1) shall answer the issue "yes" or "no";
(2) may not answer the issue "no" unless it agrees
unanimously and may not answer the issue "yes" unless 10 or more
jurors agree;
(3) need not agree on what particular evidence
supports an affirmative finding on the issue; and
(4) in respect to the issue submitted under Subsection
(e)(1), shall consider mitigating evidence to be evidence that a
juror might regard as reducing the defendant's moral
blameworthiness.
SECTION 5. Section 2, Article 37.071, Code of Criminal
Procedure, is amended by amending Subsection (g) and adding
Subsection (j) to read as follows:
(g) If the jury returns an affirmative finding on each issue
submitted under Subsection (b) [of this article] and a negative
finding on each [an] issue submitted under Subsection (e) [of this
article], except as provided by Subsection (j) the court shall
sentence the defendant to death. If the jury returns a negative
finding on any issue submitted under Subsection (b) [of this
article] or an affirmative finding on any [an] issue submitted
under Subsection (e) [of this article] or is unable to answer any
issue submitted under Subsection (b) or (e) [of this article], the
court shall sentence the defendant to imprisonment [confinement] in
the institutional division of the Texas Department of Criminal
Justice for life.
(j) The court shall sentence the defendant to imprisonment
in the institutional division of the Texas Department of Criminal
Justice for life, if as provided by Article 46C.04 the court:
(1) finds by a preponderance of the evidence that the
defendant is a person with mental retardation; or
(2) is unable to find by a preponderance of the
evidence that the defendant is a person with mental retardation and
is also unable to find by a preponderance of the evidence that the
defendant is not a person with mental retardation.
SECTION 6. The change in law made by this Act applies only
to a capital case that commences on or after the effective date of
this Act. A capital case that commences before the effective date
of this Act is covered by the law in effect when the case commenced,
and the former law is continued in effect for that purpose.
SECTION 7. This Act takes effect September 1, 2003.