78(R) SB 389 - Introduced version


                                                                                

78R3212 KEL-D

By:  Ellis                                                        S.B. No. 389



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.   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 may submit to the 
convicting court a motion for a hearing on the issue of mental 
retardation, to be conducted as provided by Chapter 46C, Code of 
Criminal Procedure.  On a finding by the court that documentary 
evidence supports an assertion that the person was a person with 
mental retardation at the time of the commission of the offense, the 
court may order a hearing that is conducted as provided by Chapter 
46C, Code of Criminal Procedure.
	SECTION 2.   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 person who at the 
time of commission of  a capital offense was a person with mental 
retardation may not be punished by death.
	Art. 46C.03.  HEARING. (a) A person who is sentenced to death 
in a capital case, at any time after the person is sentenced, may 
request that the convicting court hold a hearing to determine 
whether the person was a person with mental retardation at the time 
of the commission of the offense.
	(b)  On receipt of a request under Subsection (a), the court 
shall notify all interested parties of the request.  If the court 
determines that documentary evidence supports the assertion of 
mental retardation, a jury shall be impaneled to determine whether 
the person was a person with mental retardation at the time of the 
commission of the offense.  The person may waive the right to jury 
determination under this subsection and request that the court 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 person was a person with mental retardation at the time of the 
commission of the offense.
	(d)  If the jury is unable to agree on a unanimous verdict 
after a reasonable opportunity to deliberate, the court shall 
declare a mistrial, discharge the jury, and impanel another jury to 
determine whether the person was a person with mental retardation 
at the time of the commission of the offense.
	(e)  At the conclusion of the hearing under this article, the 
court shall dismiss the jury.
	Art. 46C.04.  BURDEN OF PROOF. (a) At a hearing under this 
chapter, the burden is on the person asserting mental retardation 
to prove by a preponderance of the evidence that the person was a 
person with mental retardation at the time of the commission of the 
offense.
	(b)  A person 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 offense.
	(c)  The state may offer evidence to rebut the presumption of 
mental retardation or the person's claim.
	Art. 46C.05.  DETERMINATION REGARDING MENTAL RETARDATION. 
(a) If the convicting court or jury, whichever is the finder of 
fact, determines that the person asserting mental retardation was a 
person with mental retardation at the time of the commission of the 
offense, the court shall immediately forward a copy of the finding 
to the court of criminal appeals.
	(b)  The court of criminal appeals shall adopt rules as 
necessary regarding receipt of the information forwarded to that 
court under this article.
	Art. 46C.06.  APPOINTMENT OF DISINTERESTED EXPERTS. On the 
request of either party or on the convicting court's own motion, the 
court shall appoint disinterested experts experienced and 
qualified in the field of diagnosing mental retardation to examine 
the person and determine whether the person is a person with mental 
retardation.  The court may order the person to submit to an 
examination by experts appointed under this article.
	Art. 46C.07.  APPEAL. (a) The  person asserting mental 
retardation and the state are entitled to appeal a determination as 
to whether the person was a person with mental retardation at the 
time of the commission of the offense.
	(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 3.   This Act takes effect September 1, 2003.