88R878 ADM-F
 
  By: Miles S.B. No. 1353
 
 
 
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 to determine the issue.  The hearing must be held:
               (1)  not earlier than the 180th day 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 under this chapter outside the presence of the jury if the
  attorney can show good cause for not filing a request within the
  time limit prescribed by Subsection (a).
         Art. 46D.004.  APPOINTMENT OF DISINTERESTED EXPERT. (a)  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 AND ORDER RELATED TO
  INTELLECTUAL DISABILITY. (a) As soon as practicable but not later
  than the 30th day after the conclusion of a hearing under this
  chapter, 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.
         (b)  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.