82R7021 JSC-F

By: Ellis S.B. No. 1079

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 1, 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. DEFINITIONS. In this chapter:

(1) "Adaptive behavior" means the effectiveness with or degree to which a person meets generally recognized standards of personal independence and social responsibility by using learned conceptual, social, and practical skills in everyday life.

(2) "Mental retardation" means significant limitations in intellectual functioning that are concurrent with significant deficits in adaptive behavior, including conceptual, social, and practical skills, if those characteristics originate during the developmental period.

(3) "Person with mental retardation" means a person with significant limitations in intellectual functioning that are concurrent with significant deficits in adaptive behavior, including conceptual, social, and practical skills, if those characteristics originated during the person's developmental period, as determined by a clinician in the exercise of clinical judgment.

(4) "Significant limitations in intellectual functioning" refers to a measured intelligence quotient on a standardized psychometric instrument of two or more standard deviations below the age-group mean for the test used.

Art. 46D.02. RESTRICTION ON DEATH PENALTY. A defendant who at the time of commission of a capital offense was a person with mental retardation may not be sentenced to death.

Art. 46D.03. HEARING. (a) Counsel for a defendant in a capital case, not later than the 30th day before the trial commences, may request that the judge hearing the case hold a hearing to determine whether the defendant was a person with mental retardation at the time of the commission of the alleged offense.

(b) If the defendant does not give timely notice as provided by Subsection (a), the court may not hold a hearing described by this article unless the court finds that good cause existed for failure to give timely notice.

(c) On receipt of a request under Subsection (a), the judge shall notify all interested parties of the request. If the judge determines that there is evidence to support a finding of mental retardation, a jury shall be impaneled to determine whether the defendant was a person with mental retardation at the time of the commission of the alleged offense. A defendant may waive the right to jury determination under this subsection and request that the judge make the determination if the court and the prosecuting attorney do not object.

(d) Instructions to the jury submitting the issue of mental retardation shall require the jury to state in its verdict whether the defendant was a person with mental retardation at the time of the commission of the alleged offense.

(e) If the jury is unable to agree on a unanimous verdict after a reasonable opportunity to deliberate, the judge shall declare a mistrial, discharge the jury, and impanel another jury to determine whether the defendant was a person with mental retardation at the time of the commission of the alleged offense.

(f) At the conclusion of the hearing under this article, the judge shall dismiss the jury, and the members of that jury may not serve on a jury in the subsequent trial of the case.

Art. 46D.04. BURDEN OF PROOF. (a) At a hearing under this chapter, the burden is on the defendant to prove by a preponderance of the evidence that the defendant was a person with mental retardation at the time of the commission of the alleged offense.

(b) A defendant who has an intelligence quotient of 75 or less is presumed to be a person who was a person with mental retardation at the time of the commission of the alleged offense.

(c) A determination made before the commission of the alleged offense by a qualified institution or individual, including a psychologist, an educational institution, a local mental health and mental retardation authority, the United States Social Security Administration, a court, or another governmental agency or social service provider that a defendant is a person with mental retardation, as defined by the law of this state or any other state, creates an evidentiary presumption that the defendant was a person with mental retardation at the time of the commission of the alleged offense.

(d) The state may offer evidence to rebut a presumption of mental retardation or the defendant's claim.

Art. 46D.05. SENTENCING ALTERNATIVES. (a) If the judge or jury, whichever is the finder of fact, determines that the defendant was a person with mental retardation at the time of the commission of the alleged offense and the defendant is subsequently convicted of the offense, Article 37.071 does not apply to the defendant, and the judge shall sentence the defendant to imprisonment in the Texas Department of Criminal Justice for life without parole.

(b) If the judge or jury, whichever is the finder of fact, determines that the defendant was not a person with mental retardation at the time of the commission of the alleged offense, 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 or a jury 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 or jury, whichever is the finder of fact, must, before the trial of the offense under Section 19.03, Penal Code, commences, make the determination described by Subsection (b).

Art. 46D.06. APPOINTMENT OF DISINTERESTED EXPERTS. On the request of either party or on the judge's own motion, the judge shall appoint 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 judge may order the defendant to submit to an examination by experts appointed under this article.

Art. 46D.07. INTERLOCUTORY APPEAL. (a) The defendant and the state are entitled to appeal a determination described by Article 46D.05(b).

(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.

Art. 46D.08. CONSTRUCTION WITH OTHER LAW. If the judge or jury, whichever is the finder of fact, determines that the defendant was not a person with mental retardation at the time of the commission of the alleged offense 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.

SECTION 2. 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" and "person with mental retardation" have the meanings assigned by Article 46D.01, Code of Criminal Procedure.

(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 at a trial that commences before September 1, 2011, may submit to the convicting court a motion for a hearing on the issue of mental retardation, to be conducted in the same manner as a hearing under Chapter 46D, 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 alleged offense, the court may order a hearing that, except for occurring after sentencing, is conducted in the same manner as a hearing under Chapter 46D, Code of Criminal Procedure. After making a finding as to whether the person was a person with mental retardation, the court shall immediately forward a copy of the finding to the court of criminal appeals.

(d) A finding under this section that the person was not a person with mental retardation at the time of the commission of the alleged offense does not preclude the person from filing a motion under Article 46.05, Code of Criminal Procedure, and is not admissible as evidence in a hearing under that article. A finding under Article 46.05 that the person is competent to be executed does not preclude the person from filing a motion under this section and is not admissible as evidence in a hearing under this section.

SECTION 3. Chapter 46D, Code of Criminal Procedure, as added by this Act, applies only to a trial that commences on or after the effective date of this Act, regardless of whether the alleged offense was committed before, on, or after that date.

SECTION 4. This Act takes effect September 1, 2011.