| |
| |
|
|
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. Title I, Code of Criminal Procedure, is amended |
|
|
by adding Chapter 46D to read as follows: |
|
|
CHAPTER 46D. CAPITAL CASE: EFFECT OF MENTAL RETARDATION |
|
|
Art. 46D.01. DEFINITION. In this chapter, "mental |
|
|
retardation" has the meaning assigned by Section 591.003, Health |
|
|
and Safety Code. |
|
|
Art. 46D.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. 46D.03. INTENT TO RAISE MENTAL RETARDATION AS ISSUE. |
|
|
(a) A defendant in a capital case may request: |
|
|
(1) that the judge hearing the case hold a pre-trial |
|
|
hearing to determine whether the defendant is a person with mental |
|
|
retardation; and |
|
|
(2) the submission of a special issue to the jury under |
|
|
Section 2(e)(2), Article 37.071. |
|
|
(b) The defendant must file a notice of intent to request a |
|
|
pretrial hearing under Section 2(e)(2), Article 37.071 with the |
|
|
court and the attorney representing the state not later than the |
|
|
60th day before the date the trial commences. |
|
|
Art. 46D.04. PRETRIAL HEARING. A judge shall hold a |
|
|
pretrial hearing. After presentation of the evidence, a judge shall |
|
|
make a determination that the defendant is a person with mental |
|
|
retardation or is not a person with mental retardation. |
|
|
Art. 46D.05. BURDEN OF PROOF. At a hearing under this |
|
|
chapter, the burden is on the defendant to prove by a preponderance |
|
|
of the evidence that the defendant is a person with mental |
|
|
retardation. |
|
|
Art. 46D.06. SENTENCING ALTERNATIVES. (a) If the judge |
|
|
determines that the defendant was a person with mental retardation |
|
|
and the defendant is subsequently convicted of the offense, the |
|
|
judge may sentence the defendant to imprisonment in the Texas |
|
|
Department of Criminal Justice for life without parole. |
|
|
(b) If the judge determines that the defendant was not a |
|
|
person with mental retardation, 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 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 must make the determination of mental |
|
|
retardation before the trial of the offense commences under Section |
|
|
19.03, Penal Code. |
|
|
Art. 46D.07. APPOINTMENT OF DISINTERESTED EXPERTS. On the |
|
|
request of either party or on the judge's own motion, the judge |
|
|
shall appoint two disinterested experts experienced and qualified |
|
|
in the field of diagnosing mental retardation to independently |
|
|
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. 46D.08. CONSTRUCTION WITH OTHER LAW. If the judge |
|
|
determines that the defendant was not a person with mental |
|
|
retardation and the defendant is subsequently convicted of the |
|
|
offense, the fact finder's determination: |
|
|
(1) does not preclude the defendant from filing a |
|
|
motion under Article 46.05; and |
|
|
(2) notwithstanding Article 46.05(j), is not |
|
|
admissible as evidence in a hearing under Article 46.05. |
|
|
Art. 46D.09. SENTENCING PHASE SPECIAL ISSUE FOR JURY. (a) |
|
|
The court shall allow the jury to consider the evidence whether the |
|
|
defendant is a person with mental retardation offered by the |
|
|
attorney representing the state or the defendant. |
|
|
(b)(1) If after considering all findings offered under |
|
|
Subsection (a) the jury finds by a preponderance of the evidence |
|
|
that the defendant is a person with mental retardation, the court |
|
|
may sentence the defendant to imprisonment as provided by Section |
|
|
2(j), Article 37.071. |
|
|
(2) If the jury does not find that the defendant is a |
|
|
person with mental retardation, the court may sentence the |
|
|
defendant to death as provided by Section 2(g), Article 37.071. |
|
|
Art. 46D.10. APPEAL. Upon conviction and sentencing, the |
|
|
defendant and the state are entitled to appeal a finding of a court |
|
|
described in this Article. |
|
|
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 without parole. |
|
|
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, 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 introduction of evidence of |
|
|
extraneous conduct is governed by the notice requirements of |
|
|
Section 3(g), Article 37.07. 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 (c) or (e). |
|
|
SECTION 3. 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 with mental retardation may not be punished by |
|
|
death. |
|
|
SECTION 4. 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 5. This Act takes effect September 1, 2009. |