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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 an intellectual disability. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Title 1, 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 INTELLECTUAL DISABILITY |
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Art. 46D.01. DEFINITIONS. In this chapter: |
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(1) "Adaptive behavior" means the effectiveness with |
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or degree to which a person meets generally recognized standards of |
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personal independence and social responsibility by using learned |
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conceptual, social, and practical skills in everyday life. |
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(2) "Intellectual disability" means significant |
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limitations in intellectual functioning that are concurrent with |
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significant deficits in adaptive behavior, including conceptual, |
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social, and practical skills, if those characteristics originate |
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during the developmental period. |
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(3) "Person with an intellectual disability" means a |
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person with significant limitations in intellectual functioning |
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that are concurrent with significant deficits in adaptive behavior, |
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including conceptual, social, and practical skills, if those |
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characteristics originated during the person's developmental |
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period, as determined by a clinician in the exercise of clinical |
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judgment. |
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(4) "Significant limitations in intellectual |
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functioning" refers to a measured intelligence quotient on a |
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standardized psychometric instrument of two or more standard |
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deviations below the age-group mean for the test used. |
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Art. 46D.02. RESTRICTION ON DEATH PENALTY. A defendant who |
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is a person with an intellectual disability may not be sentenced to |
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death. |
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Art. 46D.03. HEARING. (a) Counsel for a defendant in a |
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capital case, not later than the 30th day before the trial |
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commences, may request that the judge hearing the case hold a |
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hearing to determine whether the defendant is a person with an |
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intellectual disability. |
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(b) If the defendant does not give timely notice as provided |
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by Subsection (a), the court may not hold a hearing described by |
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this article unless the court finds that good cause existed for |
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failure to give timely notice. |
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(c) On receipt of a request under Subsection (a), the judge |
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shall notify all interested parties of the request. If the judge |
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determines that there is evidence to support a finding that the |
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defendant is a person with an intellectual disability, a jury shall |
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be impaneled to determine that issue. A defendant may waive the |
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right to jury determination under this subsection and request that |
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the judge make the determination if the court and the prosecuting |
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attorney do not object. |
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(d) Instructions to the jury submitting the issue of whether |
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the defendant is a person with an intellectual disability shall |
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require the jury to state its finding on that issue in the verdict. |
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(e) If the jury is unable to agree on a unanimous verdict |
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after a reasonable opportunity to deliberate, the judge shall |
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declare a mistrial, discharge the jury, and impanel another jury to |
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determine whether the defendant is a person with an intellectual |
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disability. |
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(f) At the conclusion of the hearing under this article, the |
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judge shall dismiss the jury, and the members of that jury may not |
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serve on a jury in the subsequent trial of the case. |
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Art. 46D.04. BURDEN OF PROOF. (a) 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 an intellectual |
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disability. |
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(b) A defendant who has an intelligence quotient of 75 or |
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less is presumed to be a person with an intellectual disability. |
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(c) A determination made by a qualified institution or |
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individual, including a psychologist, an educational institution, |
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a local mental health and mental retardation authority, the United |
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States Social Security Administration, a court, or another |
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governmental agency or social service provider that a defendant is |
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a person with an intellectual disability, as defined by the law of |
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this state or any other state, creates an evidentiary presumption |
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that the defendant is a person with an intellectual disability. |
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(d) The state may offer evidence to rebut the defendant's |
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claim or a presumption under Subsection (b) or (c). |
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Art. 46D.05. SENTENCING ALTERNATIVES. (a) If the judge or |
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jury, whichever is the finder of fact, determines that the |
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defendant is a person with an intellectual disability and the |
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defendant is subsequently convicted of the alleged offense, Article |
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37.071 does not apply to the defendant, and the judge shall sentence |
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the defendant to imprisonment in the Texas Department of Criminal |
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Justice for life without parole. |
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(b) If the judge or jury, whichever is the finder of fact, |
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determines that the defendant is not a person with an intellectual |
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disability, the judge shall conduct the trial in the same manner as |
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if a hearing under this chapter had not been held. At the trial of |
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the offense: |
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(1) the jury may not be informed of the fact that the |
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judge or a jury has determined under this article that the defendant |
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is not a person with an intellectual disability; and |
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(2) the defendant may present at trial evidence of |
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intellectual disability as permitted by Article 37.071. |
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(c) The judge or jury, whichever is the finder of fact, |
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must, before the trial of the alleged offense commences, make a |
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determination under Subsection (a) or (b). |
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Art. 46D.06. 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 disinterested experts experienced and qualified in |
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the field of diagnosing intellectual disabilities to examine the |
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defendant and determine whether the defendant is a person with an |
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intellectual disability. The judge may order the defendant to |
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submit to an examination by experts appointed under this article. |
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Art. 46D.07. INTERLOCUTORY APPEAL. (a) The defendant and |
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the state are entitled to appeal a determination described by |
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Article 46D.05(b). |
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(b) The court of criminal appeals shall adopt rules as |
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necessary for the administration of the appeals process established |
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by this article. |
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(c) An appeal under this article is a direct appeal to the |
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court of criminal appeals, and the court of criminal appeals, as |
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provided by court rule, shall give priority to the review of an |
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appeal under this article over other cases before the court. |
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Art. 46D.08. CONSTRUCTION WITH OTHER LAW. If the judge or |
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jury, whichever is the finder of fact, determines that the |
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defendant is not a person with an intellectual disability and the |
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defendant is subsequently convicted of the alleged offense, the |
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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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SECTION 2. 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. INTELLECTUAL DISABILITY AFFECTING DEATH |
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SENTENCE. (a) In this section, "intellectual disability" and |
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"person with an intellectual disability" have the meanings assigned |
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by Article 46D.01, Code of Criminal Procedure. |
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(b) A person with an intellectual disability may not be |
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punished by death. |
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(c) A person who is sentenced to death at a trial that |
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commences before September 1, 2013, may submit to the convicting |
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court a motion for a hearing on the issue of whether the person is a |
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person with an intellectual disability, to be conducted in the same |
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manner as a hearing under Chapter 46D, Code of Criminal Procedure. |
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On a finding by the court that documentary evidence supports an |
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assertion that the person is a person with an intellectual |
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disability, the court may order a hearing that, except for |
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occurring after sentencing, is conducted in the same manner as a |
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hearing under Chapter 46D, Code of Criminal Procedure. After |
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making a finding as to whether the person is a person with an |
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intellectual disability, the court shall immediately forward a copy |
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of the finding to the court of criminal appeals. |
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(d) A finding under this section that the person is not a |
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person with an intellectual disability does not preclude the person |
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from filing a motion under Article 46.05, Code of Criminal |
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Procedure, and is not admissible as evidence in a hearing under that |
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article. A finding under Article 46.05 that the person is competent |
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to be executed does not preclude the person from filing a motion |
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under this section and is not admissible as evidence in a hearing |
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under this section. |
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SECTION 3. Chapter 46D, Code of Criminal Procedure, as |
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added by this Act, applies only to a trial that commences on or |
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after the effective date of this Act, regardless of whether the |
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alleged offense was committed before, on, or after that date. |
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SECTION 4. This Act takes effect September 1, 2013. |