78(R) SB 163 - Introduced version


                                                                                

78R1150 KEL-D

By:  Ellis                                                        S.B. No. 163



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.   The 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(b), Penal Code, or Article 37.071, a defendant who at 
the time of commission of  a capital offense was a person with 
mental retardation may not be sentenced to death.
	Art. 46C.03.  HEARING. (a) Counsel for a defendant in a 
capital case, at any time before the trial commences, may request 
that the judge hearing the case hold a hearing to determine whether 
the defendant was a person with mental retardation at the time of 
the commission of the alleged offense.
	(b)  On receipt of a request under Subsection (a), the judge 
shall notify all interested parties of the request.  If the judge 
determines that there is evidence to support a finding of mental 
retardation, a jury shall be impaneled to determine whether the 
defendant was a person with mental retardation at the time of the 
commission of the offense.  A defendant may waive the right to jury 
determination under this subsection and request that the judge make 
the determination.
	(c)  Instructions to the jury submitting the issue of mental 
retardation shall require the jury to state in its verdict whether 
the defendant was a person with mental retardation at the time of 
the commission of the alleged offense.
	(d)  If the jury is unable to agree on a unanimous verdict 
after a reasonable opportunity to deliberate, the judge shall 
declare a mistrial, discharge the jury, and impanel another jury to 
determine whether the defendant was a person with mental 
retardation at the time of the commission of the alleged offense.
	(e)  At the conclusion of the hearing under this article, the 
judge shall dismiss the jury, and the members of that jury may not 
serve on a jury in the subsequent trial of the case.
	Art. 46C.04.  BURDEN OF PROOF. (a) At a hearing under this 
chapter, the burden is on the defendant to prove by a preponderance 
of the evidence that the defendant was a person with mental 
retardation at the time of the commission of the alleged offense.
	(b)  A defendant who has an intelligence quotient of 70 or 
less is presumed to be a person who was a person with mental 
retardation at the time of the commission of the alleged offense.
	(c)  The state may offer evidence to rebut the presumption of 
mental retardation or the defendant's claim.
	Art. 46C.05.  SENTENCING ALTERNATIVES. (a) If the judge or 
jury, whichever is the finder of fact, determines that the 
defendant was a person with mental retardation at the time of the 
commission of the alleged offense and the defendant is subsequently 
convicted of the offense, Article 37.071 does not apply to the 
defendant, and the judge shall sentence the defendant to life 
imprisonment in the institutional division of the Texas Department 
of Criminal Justice.
	(b)  If the judge or jury, whichever is the finder of fact, 
determines that the defendant was not a person with mental 
retardation at the time of the commission of the alleged offense, 
the judge shall conduct the trial in the same manner as if a hearing 
under this chapter had not been held.  At the trial of the offense:
		(1)  the jury may not be informed of the fact that the 
judge or a jury has determined under this article that the defendant 
was not a person with mental retardation; and
		(2)  the defendant may present at trial evidence of 
mental disability as permitted by Article 37.071.
	(c)  The judge or jury, whichever is the finder of fact, 
must, before the trial of the offense under Section 19.03, Penal 
Code, commences, make the determination described by Subsection 
(b).
	Art. 46C.06.  APPOINTMENT OF DISINTERESTED EXPERTS. On the 
request of either party or on the judge's own motion, the judge 
shall appoint 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 judge may order the defendant to submit to an 
examination by experts appointed under this article.
	Art. 46C.07.  INTERLOCUTORY APPEAL. (a) The defendant and 
the state are entitled to appeal a determination described by 
Article 46C.05(b).
	(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.   Chapter 6, Penal Code, is amended by adding 
Section 6.05 to read as follows:
	Sec. 6.05.  MENTAL RETARDATION AFFECTING DEATH SENTENCE. (a)  
In this section, "mental retardation" has the meaning assigned by 
Section 591.003, Health and Safety Code.
	(b)  A person may not be punished by death for an offense 
committed while the person was a person with mental retardation.
	(c)  A person who is sentenced to death at a trial that 
commences before September 1, 2003, may submit to the convicting 
court a motion for a hearing on the issue of mental retardation, to 
be conducted in the same manner as a hearing under Chapter 46C, Code 
of Criminal Procedure.  On a finding by the court that documentary 
evidence supports an assertion that the person is a person with 
mental retardation, the court may order a hearing that, except for 
occurring after sentencing, is conducted in the same manner as a 
hearing under Chapter 46C, Code of Criminal Procedure. After making 
a finding as to whether the person is a person with mental 
retardation, the court shall immediately forward a copy of the 
finding to the court of criminal appeals.
	SECTION 3.  Chapter 46C, Code of Criminal Procedure, as 
added by this Act, applies only to a trial that commences on or 
after the effective date of this Act regardless of whether the 
alleged offense was committed before, on, or after that date.
	SECTION 4.   This Act takes effect September 1, 2003.