| |
| |
|
|
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. Part I, Code of Criminal Procedure, is amended by |
|
|
adding Chapter 46D to read as follows: |
|
|
CHAPTER . 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 |
|
|
defendant in a capital case may request the submission of a special |
|
|
issue under Section 2(e)(2), Article 37.071, only if the defendant |
|
|
files a notice of intent to request the submission with the court |
|
|
and the attorney representing the state not later than the 30th day |
|
|
before the date the trial commences. |
|
|
Art. 46D.04. HEARING. (a) If a jury in a capital case |
|
|
returns an affirmative finding on each issue submitted under |
|
|
Section 2(b), Article 37.071, and a negative finding under Section |
|
|
2(e)(2), Article 37.071, the defendant immediately after the jury |
|
|
returns findings under Article 37.071 may file a petition for a |
|
|
hearing described by Subsection (c). |
|
|
(b) On receipt of a petition under Subsection (a), the court |
|
|
shall appoint two 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 court shall order the defendant to submit |
|
|
to an examination by experts appointed under this article. |
|
|
(c) After the examination of the defendant by the experts |
|
|
appointed under this article, the court in a hearing shall consider |
|
|
the findings of those experts and the findings of other experts, if |
|
|
any, offered by the attorney representing the state or the |
|
|
defendant. |
|
|
(d)(1) If after considering all findings offered under |
|
|
Subsection (c) the court finds by a preponderance of the evidence |
|
|
that the defendant is a person with mental retardation, the court |
|
|
shall sentence the defendant to imprisonment as provided by Section |
|
|
2(j), Article 37.071. |
|
|
(2) If the court finds by a preponderance of the |
|
|
evidence that the defendant is not a person with mental |
|
|
retardation, the court shall sentence the defendant to death as |
|
|
provided by Section 2(g), Article 37.071. |
|
|
(3) If the court is unable to make a finding under |
|
|
Subdivision (1) and is also unable to make a finding under |
|
|
Subdivision (2), the court shall sentence the defendant to |
|
|
imprisonment as provided by Section 2(j), Article 37.071. |
|
|
Art. 46D.05. APPEAL. (a) The defendant and the state are |
|
|
entitled to appeal a finding of a court described by Article |
|
|
46D.04(d). |
|
|
(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. 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. 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 |
|
|
and 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 |
|
|
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 3. Section 2(e), Article 37.071, Code of Criminal |
|
|
Procedure, is amended to read as follows: |
|
|
(e)(1) The court shall instruct the jury that if the jury |
|
|
returns an affirmative finding to each issue submitted under |
|
|
Subsection (b) [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. |
|
|
(2) If raised by the evidence, the court, on the |
|
|
written request of the attorney representing the defendant, 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. |
|
|
(3) The court, on the written request of the attorney |
|
|
representing the defendant, shall: |
|
|
(A) instruct the jury that if the jury answers |
|
|
that a circumstance or circumstances warrant that a sentence of |
|
|
life imprisonment rather than a death sentence be imposed or |
|
|
answers that the defendant is a person with mental retardation, 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 4. Section 2(f), Article 37.071, Code of Criminal |
|
|
Procedure, is amended to read as follows: |
|
|
(f) The court shall charge the jury that in answering an |
|
|
[the] issue submitted under Subsection (e) [of this article], the |
|
|
jury: |
|
|
(1) shall answer the issue "yes" or "no"; |
|
|
(2) may not answer the issue "no" unless it agrees |
|
|
unanimously and may not answer the issue "yes" unless 10 or more |
|
|
jurors agree; |
|
|
(3) need not agree on what particular evidence |
|
|
supports an affirmative finding on the issue; and |
|
|
(4) in respect to the issue submitted under Subsection |
|
|
(e)(1), shall consider mitigating evidence to be evidence that a |
|
|
juror might regard as reducing the defendant's moral |
|
|
blameworthiness. |
|
|
SECTION 5. Section 2, Article 37.071, Code of Criminal |
|
|
Procedure, is amended by amending Subsection (g) and adding |
|
|
Subsection (j) 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], except as provided by Subsection (j) 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. |
|
|
(j) The court shall sentence the defendant to imprisonment |
|
|
in the institutional division of the Texas Department of Criminal |
|
|
Justice for life, if as provided by Article 46D.04 the court: |
|
|
(1) finds by a preponderance of the evidence that the |
|
|
defendant is a person with mental retardation; or |
|
|
(2) is unable to find by a preponderance of the |
|
|
evidence that the defendant is a person with mental retardation and |
|
|
is also unable to find by a preponderance of the evidence that the |
|
|
defendant is not a person with mental retardation. |
|
|
SECTION 6. 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 7. This Act takes effect September 1, 2009. |