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A BILL TO BE ENTITLED
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AN ACT
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relating to the applicability of the death penalty to a capital |
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offense committed by a person with mental retardation. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Title I, Code of Criminal Procedure, is amended |
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by adding Chapter 46D to read as follows: |
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CHAPTER 46D. CAPITAL CASE: EFFECT OF MENTAL RETARDATION |
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Art. 46D.01. DEFINITION. In this chapter, "mental |
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retardation" has the meaning assigned by Section 591.003, Health |
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and Safety Code. |
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Art. 46D.02. RESTRICTION ON DEATH PENALTY. Notwithstanding |
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Section 19.03, Penal Code, a defendant convicted of a capital |
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offense who is determined under this chapter to be a person with |
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mental retardation may not be sentenced to death. |
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Art. 46D.03. INTENT TO RAISE MENTAL RETARDATION AS ISSUE. |
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(a) A defendant in a capital case may request: |
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(1) that the judge hearing the case hold a pre-trial |
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hearing to determine whether the defendant is a person with mental |
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retardation; and |
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(2) the submission of a special issue to the jury under |
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Section 2(e)(2), Article 37.071. |
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(b) The defendant must file a notice of intent to request a |
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pretrial hearing under Section 2(e)(2), Article 37.071 with the |
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court and the attorney representing the state not later than the |
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60th day before the date the trial commences. |
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Art. 46D.04. PRETRIAL HEARING. A judge shall hold a |
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pretrial hearing. After presentation of the evidence, a judge shall |
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make a determination that the defendant is a person with mental |
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retardation or is not a person with mental retardation. |
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Art. 46D.05. BURDEN OF PROOF. At a hearing under this |
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chapter, the burden is on the defendant to prove by a preponderance |
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of the evidence that the defendant is a person with mental |
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retardation. |
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Art. 46D.06. SENTENCING ALTERNATIVES. (a) If the judge |
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determines that the defendant was a person with mental retardation |
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and the defendant is subsequently convicted of the offense, the |
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judge may sentence the defendant to imprisonment in the Texas |
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Department of Criminal Justice for life without parole. |
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(b) If the judge determines that the defendant was not a |
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person with mental retardation, the judge shall conduct the trial |
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in the same manner as if a hearing under this chapter had not been |
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held. At the trial of the offense: |
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(1) the jury may not be informed of the fact that the |
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judge has determined under this article that the defendant was not |
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a person with mental retardation; and |
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(2) the defendant may present at trial evidence of |
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mental disability as permitted by Article 37.071. |
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(c) The judge must make the determination of mental |
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retardation before the trial of the offense commences under Section |
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19.03, Penal Code. |
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Art. 46D.07. APPOINTMENT OF DISINTERESTED EXPERTS. On the |
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request of either party or on the judge's own motion, the judge |
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shall appoint two disinterested experts experienced and qualified |
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in the field of diagnosing mental retardation to independently |
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examine the defendant and determine whether the defendant is a |
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person with mental retardation. The judge may order the defendant |
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to submit to an examination by experts appointed under this |
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article. |
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Art. 46D.08. CONSTRUCTION WITH OTHER LAW. If the judge |
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determines that the defendant was not a person with mental |
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retardation and the defendant is subsequently convicted of the |
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offense, the fact finder's determination: |
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(1) does not preclude the defendant from filing a |
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motion under Article 46.05; and |
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(2) notwithstanding Article 46.05(j), is not |
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admissible as evidence in a hearing under Article 46.05. |
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Art. 46D.09. SENTENCING PHASE SPECIAL ISSUE FOR JURY. (a) |
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The court shall allow the jury to consider the evidence whether the |
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defendant is a person with mental retardation offered by the |
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attorney representing the state or the defendant. |
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(b)(1) If after considering all findings offered under |
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Subsection (a) the jury finds by a preponderance of the evidence |
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that the defendant is a person with mental retardation, the court |
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may sentence the defendant to imprisonment as provided by Section |
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2(j), Article 37.071. |
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(2) If the jury does not find that the defendant is a |
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person with mental retardation, the court may sentence the |
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defendant to death as provided by Section 2(g), Article 37.071. |
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Art. 46D.10. APPEAL. Upon conviction and sentencing, the |
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defendant and the state are entitled to appeal a finding of a court |
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described in this Article. |
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SECTION 2. Section 2(a)(1), Article 37.071, Code of |
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Criminal Procedure, is amended to read as follows: |
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(a)(1) If a defendant is tried for a capital offense in |
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which the state seeks the death penalty, on a finding that the |
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defendant is guilty of a capital offense, the court shall conduct a |
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separate sentencing proceeding to determine whether the defendant |
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shall be sentenced to death or life imprisonment without parole. |
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The proceeding shall be conducted in the trial court and, except as |
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provided by Article 44.29(c) of this code, before the trial jury as |
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soon as practicable. In the proceeding, evidence may be presented |
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by the state and the defendant or the defendant's counsel as to any |
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matter that the court deems relevant to sentence, including |
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evidence of the defendant's background or character or the |
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circumstances of the offense that mitigates against the imposition |
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of the death penalty, including evidence as to whether the |
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defendant is a person with mental retardation. This subdivision |
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shall not be construed to authorize the introduction of any |
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evidence secured in violation of the Constitution of the United |
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States or of the State of Texas. The state and the defendant or the |
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defendant's counsel shall be permitted to present argument for or |
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against sentence of death. The introduction of evidence of |
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extraneous conduct is governed by the notice requirements of |
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Section 3(g), Article 37.07. The court, the attorney representing |
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the state, the defendant, or the defendant's counsel may not inform |
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a juror or a prospective juror of the effect of a failure of a jury |
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to agree on issues submitted under Subsection (c) or (e). |
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SECTION 3. Chapter 6, Penal Code, is amended by adding |
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Section 6.05 to read as follows: |
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Sec. 6.05. MENTAL RETARDATION AFFECTING DEATH SENTENCE. |
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(a) In this section, "mental retardation" has the meaning assigned |
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by Section 591.003, Health and Safety Code. |
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(b) A person with mental retardation may not be punished by |
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death. |
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SECTION 4. The change in law made by this Act applies only |
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to a capital case that commences on or after the effective date of |
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this Act. A capital case that commences before the effective date of |
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this Act is covered by the law in effect when the case commenced, |
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and the former law is continued in effect for that purpose. |
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SECTION 5. This Act takes effect September 1, 2009. |