88R1329 ADM-F
 
  By: Thompson of Harris H.B. No. 381
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the applicability of the death penalty to a capital
  offense committed by a person with an intellectual disability.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Article 44.01, Code of Criminal Procedure, is
  amended by amending Subsection (a) and adding Subsection (a-1) to
  read as follows:
         (a)  The state is entitled to appeal an order of a court in a
  criminal case if the order:
               (1)  dismisses an indictment, information, or
  complaint or any portion of an indictment, information, or
  complaint;
               (2)  arrests or modifies a judgment;
               (3)  grants a new trial;
               (4)  sustains a claim of former jeopardy;
               (5)  grants a motion to suppress evidence, a
  confession, or an admission, if jeopardy has not attached in the
  case and if the prosecuting attorney certifies to the trial court
  that the appeal is not taken for the purpose of delay and that the
  evidence, confession, or admission is of substantial importance in
  the case; or
               (6)  is issued under Chapter 46D or 64.
         (a-1)  The state's appeal of an order issued under Chapter
  46D is a direct appeal to the court of criminal appeals. The court
  of criminal appeals shall expeditiously review the appeal.
         SECTION 2.  Title 1, Code of Criminal Procedure, is amended
  by adding Chapter 46D to read as follows:
  CHAPTER 46D. CAPITAL CASE: EFFECT OF INTELLECTUAL DISABILITY
         Art. 46D.001.  DEFINITIONS. In this chapter:
               (1)  "Deficits in adaptive behavior" means sufficient
  deficits in adaptive functioning under prevailing medical
  standards for determining intellectual disability.
               (2)  "Developmental period" means the developmental
  period of a person's life, as determined by prevailing medical
  standards.
               (3)  "Intellectual disability" means significantly
  subaverage general intellectual functioning that is concurrent
  with deficits in adaptive behavior and originates during the
  developmental period.
               (4)  "Significantly subaverage general intellectual
  functioning" refers to a measured intelligence quotient on a
  standardized psychometric instrument of approximately two or more
  standard deviations below the age-group mean for the test used,
  considering the standard error of measurement applicable to the
  instrument.
         Art. 46D.002.  RESTRICTION ON DEATH PENALTY. A defendant
  who is a person with an intellectual disability may not be sentenced
  to death.
         Art. 46D.003.  HEARING; DETERMINATION. (a)  The attorney
  for a defendant in a capital case, not later than the first
  anniversary of the date of the defendant's indictment, may request
  in writing that the judge hearing the case hold a hearing to
  determine whether the defendant is a person with an intellectual
  disability.
         (b)  On receipt of a request under this article, if the judge
  determines that the request was timely filed, the judge shall hold a
  hearing in accordance with this chapter to determine the issue.  The
  hearing must be held:
               (1)  not earlier than 180 days after the date that the
  written request was submitted under Subsection (a); and
               (2)  not later than the 120th day before the date the
  trial is scheduled to begin.
         (c)  If the attorney for a defendant files an untimely
  request under Subsection (a), or after the time for filing a request
  under Subsection (a) otherwise presents evidence that the defendant
  is a person with an intellectual disability, the judge may hold a
  hearing in accordance with this chapter if the attorney can show
  good cause for not filing a request within the time limit prescribed
  by Subsection (a).  The hearing may not be held before a jury
  empaneled in the case.
         Art. 46D.004.  APPOINTMENT OF DISINTERESTED EXPERT. (a)  
  After the judge receives a request under Article 46D.003, and on the
  request of either party or on the judge's own motion, the judge
  shall appoint a disinterested expert experienced and qualified in
  the field of diagnosing intellectual disabilities to examine the
  defendant and determine whether the defendant is a person with an
  intellectual disability.
         (b)  The judge may order the defendant to submit to an
  examination by an expert appointed under this article.
         (c)  An examination described by this article must be
  narrowly tailored to determine whether the defendant has an
  intellectual disability.
         Art. 46D.005.  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 is a person with an intellectual
  disability.
         (b)  The state may offer evidence to rebut evidence offered
  by the defendant.
         Art. 46D.006.  PREVAILING MEDICAL STANDARDS. Evidence
  offered by either party for purposes of a hearing under this chapter
  must be consistent with prevailing medical standards for the
  diagnosis of intellectual disabilities.
         Art. 46D.007.  DETERMINATION BY JURY AND ORDER RELATED TO
  INTELLECTUAL DISABILITY. (a)  Except as provided by Subsection
  (f), the judge shall empanel a jury solely for the purpose of
  determining whether the defendant is a person with an intellectual
  disability.  The judge shall empanel the jury in the same manner as
  a jury is empaneled by the court for a felony other than a capital
  felony.
         (b)  After the conclusion of the hearing, the judge shall
  instruct the jury to state in its verdict whether the defendant is a
  person with an intellectual disability.
         (c)  The jury's verdict that the defendant is a person with
  an intellectual disability must be unanimous.
         (d)  If the jury determines that the defendant is a person
  with an intellectual disability, the judge shall issue an
  appropriate order in accordance with this chapter that the
  defendant is a person with an intellectual disability.
         (e)  If the jury does not determine that the defendant is a
  person with an intellectual disability, the judge shall conduct the
  trial of the offense in the same manner as if a hearing under this
  chapter had not been held. At the trial:
               (1)  the trial jury may not be informed of the fact that
  a hearing was held under this chapter; and
               (2)  the defendant may present evidence of intellectual
  disability as otherwise permitted by law.
         (f)  The defendant may, with the consent of the attorney
  representing the state, waive a hearing before a jury and request a
  hearing before the judge under Article 46D.008.
         Art. 46D.008.  DETERMINATION BY JUDGE AND ORDER RELATED TO
  INTELLECTUAL DISABILITY. (a)  If a hearing before a jury is waived
  in accordance with Article 46D.007(f), the hearing must be held
  before the judge, outside the presence of a jury.
         (b)  As soon as practicable but not later than the 30th day
  after the conclusion of a hearing under this article, the judge
  shall determine whether the defendant is a person with an
  intellectual disability and issue an appropriate order. The order
  must contain findings of fact explaining the judge's reasoning for
  the determination and citing evidence in the record.
         (c)  If the judge does not determine that the defendant is a
  person with an intellectual disability, the judge shall conduct the
  trial of the offense in the same manner as if a hearing under this
  chapter had not been held. At the trial:
               (1)  the jury may not be informed of the fact that the
  judge held a hearing under this chapter; and
               (2)  the defendant may present evidence of intellectual
  disability as otherwise permitted by law.
         SECTION 3.  The changes in law made by this Act apply 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, 2023.