78R2827 KEL-F
By: Staples S.B. No. 332
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. Section 2(a)(1), Article 37.071, Code of
Criminal Procedure, is amended to read as follows:
(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 the sentence, including evidence
as to whether the defendant is a person with mental retardation, as
defined by Article 37.072, and including evidence of the
defendant's background or character or the circumstances of the
offense that mitigates against the imposition of the death penalty.
Evidence regarding mental retardation may include evidence of the
circumstances of the offense or other crimes, wrongs, or acts. 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 a 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 2. Section 2(e), Article 37.071, Code of Criminal
Procedure, is amended to read as follows:
(e)(1) If the defendant has filed timely notice under
Article 37.072 and if the issue of mental retardation has been
raised by evidence admitted before the jury, on the written request
of the attorney representing the defendant, the court 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.
(2) The court shall instruct the jury that if the jury
returns an affirmative finding to each issue submitted under
Subsection (b) and, if the issue is submitted, a negative finding on
an issue submitted under Subdivision (1) [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.
(3) [(2)] The court, on the written request of the
attorney representing the defendant, shall:
(A) instruct the jury that if the jury answers
that the defendant is a person with mental retardation or answers
that a circumstance or circumstances warrant that a sentence of
life imprisonment rather than a death sentence be imposed, 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 3. Section 2(f), Article 37.071, Code of Criminal
Procedure, is amended to read as follows:
(f)(1) The court shall charge the jury that in answering an
[the] issue submitted under Subsection (e) [of this article], the
jury:
(A) [(1)] shall answer the issue "yes" or "no";
(B) [(2)] may not answer the issue "no" unless it
agrees unanimously and may not answer the issue "yes" unless 10 or
more jurors agree;
(C) [(3)] need not agree on what particular
evidence supports an affirmative finding on the issue; and
(D) [(4)] in respect to the issue submitted under
Subsection (e)(2), shall consider mitigating evidence to be
evidence that a juror might regard as reducing the defendant's
moral blameworthiness.
(2) In respect to an issue submitted under Subsection
(e)(1), the court shall charge the jury that the defendant must
prove the issue by a preponderance of the evidence.
SECTION 4. Section 2(g), Article 37.071, Code of Criminal
Procedure, is amended 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], 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.
SECTION 5. Chapter 37, Code of Criminal Procedure, is
amended by adding Article 37.072 to read as follows:
Art. 37.072. PROCEDURE IN CAPITAL CASE: EFFECT OF MENTAL
RETARDATION
Sec. 1. DEFINITIONS. In this article:
(1) "Adaptive behavior" means the effectiveness with
or degree to which a person meets generally recognized standards of
personal independence and social responsibility.
(2) "Mental retardation" means significantly
subaverage general intellectual functioning that is concurrent
with significant deficits in adaptive behavior, if those
characteristics originate during the developmental period.
(3) "Person with mental retardation" means a person
with significantly subaverage general intellectual functioning
that is concurrent with significant deficits in adaptive behavior
if those characteristics originated during the person's
developmental period.
(4) "Subaverage general intellectual functioning"
refers to measured intelligence on standardized psychometric
instruments of two or more standard deviations below the age-group
mean for the tests used.
Sec. 2. RESTRICTION ON DEATH PENALTY; PRIOR DETERMINATION.
(a) Notwithstanding Section 19.03, Penal Code, a defendant
convicted of a capital offense who is determined by a jury to be a
person with mental retardation under Article 37.071 may not be
sentenced to death.
(b) A previous determination regarding whether a defendant
is a person with mental retardation, as defined by the law of this
state or any other state, is admissible in a proceeding under
Article 37.071, but the previous determination regarding mental
retardation does not create an evidentiary presumption or otherwise
alter the burdens of production and proof required by this article
and Article 37.071.
Sec. 3. NOTICE. (a) A defendant charged with a capital
offense in which the state seeks the death penalty may request the
submission of a special issue under Section 2(e)(1), Article
37.071, only if in the form and manner required by Subsections (b)
and (c) the attorney representing the defendant files with the
court and the attorney representing the state a written notice of
intent to request the submission of that issue.
(b) Notice under this section must be accompanied by
objective evidence indicating that the defendant may be a person
with mental retardation. If necessary for an indigent defendant to
meet the burden of production under this subsection, the court
shall appoint an expert experienced and qualified in the field of
diagnosing mental retardation to determine whether the indigent
defendant is a person with mental retardation.
(c) Notice accompanied by objective evidence under this
section must be submitted not later than the 60th day before the
date the voir dire examination of prospective jurors begins. If
notice is not timely filed in accordance with this subsection, the
court may not permit the submission of a special issue under Section
2(e)(1), Article 37.071, unless the court finds that good cause
existed for failure to give timely notice.
Sec. 4. EXAMINATIONS. (a) For purposes of this article, the
court shall order the defendant to submit to examinations by
experts experienced and qualified in the field of diagnosing mental
retardation and retained by the defense and the attorney
representing the state, or appointed for an indigent defendant, if
the court receives:
(1) objective evidence from any source indicating that
the defendant may be a person with mental retardation; and
(2) for evidence regarding mental retardation
submitted by the defense or the attorney representing the state, a
written request for an expert examination submitted by the attorney
representing the defendant or the attorney representing the state.
(b) If the defendant fails or refuses to submit to, or fully
cooperate in, examination by experts for a party under Subsection
(a), the court may not permit the submission of a special issue
under Section 2(e)(1), Article 37.071.
SECTION 6. The change in law made by this Act applies only
to a sentencing proceeding that commences on or after the effective
date of this Act. A sentencing proceeding that commences before the
effective date of this Act is covered by the law in effect when the
proceeding commenced, and the former law is continued in effect for
that purpose.
SECTION 7. This Act takes effect September 1, 2003.