Texas 2009 - 81st Regular

Texas House Bill HB1152 Compare Versions

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1	1	81R1339 HLT-D
2	2	By: Thompson H.B. No. 1152
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the applicability of the death penalty to a capital
8	8	offense committed by a person with mental retardation.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Title 1, Code of Criminal Procedure, is amended
11	11	by adding Chapter 46D to read as follows:
12	12	CHAPTER 46D. CAPITAL CASE: EFFECT OF MENTAL RETARDATION
13	13	Art. 46D.01. DEFINITION. In this chapter, "mental
14	14	retardation" has the meaning assigned by Section 591.003, Health
15	15	and Safety Code.
16	16	Art. 46D.02. RESTRICTION ON DEATH PENALTY. A defendant who
17	17	at the time of commission of a capital offense was a person with
18	18	mental retardation may not be sentenced to death.
19	19	Art. 46D.03. HEARING. (a) Counsel for a defendant in a
20	20	capital case, at any time before the trial commences, may request
21	21	that the judge hearing the case hold a hearing to determine whether
22	22	the defendant was a person with mental retardation at the time of
23	23	the commission of the alleged offense.
24	24	(b) On receipt of a request under Subsection (a), the judge
25	25	shall notify all interested parties of the request. If the judge
26	26	determines that there is evidence to support a finding of mental
27	27	retardation, a jury shall be impaneled to determine whether the
28	28	defendant was a person with mental retardation at the time of the
29	29	commission of the offense. A defendant may waive the right to jury
30	30	determination under this subsection and request that the judge make
31	31	the determination.
32	32	(c) Instructions to the jury submitting the issue of mental
33	33	retardation shall require the jury to state in its verdict whether
34	34	the defendant was a person with mental retardation at the time of
35	35	the commission of the alleged offense.
36	36	(d) If the jury is unable to agree on a unanimous verdict
37	37	after a reasonable opportunity to deliberate, the judge shall
38	38	declare a mistrial, discharge the jury, and impanel another jury to
39	39	determine whether the defendant was a person with mental
40	40	retardation at the time of the commission of the alleged offense.
41	41	(e) At the conclusion of the hearing under this article, the
42	42	judge shall dismiss the jury, and the members of that jury may not
43	43	serve on a jury in the subsequent trial of the case.
44	44	Art. 46D.04. BURDEN OF PROOF. (a) At a hearing under this
45	45	chapter, the burden is on the defendant to prove by a preponderance
46	46	of the evidence that the defendant was a person with mental
47	47	retardation at the time of the commission of the alleged offense.
48	48	(b) A defendant who has an intelligence quotient of 70 or
49	49	less is presumed to be a person who was a person with mental
50	50	retardation at the time of the commission of the alleged offense.
51	51	(c) The state may offer evidence to rebut the presumption of
52	52	mental retardation or the defendant's claim.
53	53	Art. 46D.05. SENTENCING ALTERNATIVES. (a) If the judge or
54	54	jury, whichever is the finder of fact, determines that the
55	55	defendant was a person with mental retardation at the time of the
56	56	commission of the alleged offense and the defendant is subsequently
57	57	convicted of the offense, Article 37.071 does not apply to the
58	58	defendant, and the judge shall sentence the defendant to
59	59	imprisonment in the Texas Department of Criminal Justice for life
60	60	without parole.
61	61	(b) If the judge or jury, whichever is the finder of fact,
62	62	determines that the defendant was not a person with mental
63	63	retardation at the time of the commission of the alleged offense,
64	64	the judge shall conduct the trial in the same manner as if a hearing
65	65	under this chapter had not been held. At the trial of the offense:
66	66	(1) the jury may not be informed of the fact that the
67	67	judge or a jury has determined under this article that the defendant
68	68	was not a person with mental retardation; and
69	69	(2) the defendant may present at trial evidence of
70	70	mental disability as permitted by Article 37.071.
71	71	(c) The judge or jury, whichever is the finder of fact,
72	72	must, before the trial of the offense under Section 19.03, Penal
73	73	Code, commences, make the determination described by Subsection
74	74	(b).
75	75	Art. 46D.06. APPOINTMENT OF DISINTERESTED EXPERTS. On the
76	76	request of either party or on the judge's own motion, the judge
77	77	shall appoint disinterested experts experienced and qualified in
78	78	the field of diagnosing mental retardation to examine the defendant
79	79	and determine whether the defendant is a person with mental
80	80	retardation. The judge may order the defendant to submit to an
81	81	examination by experts appointed under this article.
82	82	Art. 46D.07. INTERLOCUTORY APPEAL. (a) The defendant and
83	83	the state are entitled to appeal a determination described by
84	84	Article 46D.05(b).
85	85	(b) The court of criminal appeals shall adopt rules as
86	86	necessary for the administration of the appeals process established
87	87	by this article.
88	88	(c) An appeal under this article is a direct appeal to the
89	89	court of criminal appeals, and the court of criminal appeals, as
90	90	provided by court rule, shall give priority to the review of an
91	91	appeal under this article over other cases before the court.
92	92	Art. 46D.08. CONSTRUCTION WITH OTHER LAW. If the judge or
93	93	jury, whichever is the finder of fact, determines that the
94	94	defendant was not a person with mental retardation at the time of
95	95	the commission of the alleged offense and the defendant is
96	96	subsequently convicted of the offense, the fact finder's
97	97	determination:
98	98	(1) does not preclude the defendant from filing a
99	99	motion under Article 46.05; and
100	100	(2) notwithstanding Article 46.05(j), is not
101	101	admissible as evidence in a hearing under Article 46.05.
102	102	SECTION 2. Chapter 6, Penal Code, is amended by adding
103	103	Section 6.05 to read as follows:
104	104	Sec. 6.05. MENTAL RETARDATION AFFECTING DEATH SENTENCE. (a)
105	105	In this section, "mental retardation" has the meaning assigned by
106	106	Section 591.003, Health and Safety Code.
107	107	(b) A person may not be punished by death for an offense
108	108	committed while the person was a person with mental retardation.
109	109	(c) A person who is sentenced to death at a trial that
110	110	commences before September 1, 2009, may submit to the convicting
111	111	court a motion for a hearing on the issue of mental retardation, to
112	112	be conducted in the same manner as a hearing under Chapter 46D, Code
113	113	of Criminal Procedure. On a finding by the court that documentary
114	114	evidence supports an assertion that the person was a person with
115	115	mental retardation at the time of the commission of the alleged
116	116	offense, the court may order a hearing that, except for occurring
117	117	after sentencing, is conducted in the same manner as a hearing under
118	118	Chapter 46D, Code of Criminal Procedure. After making a finding as
119	119	to whether the person was a person with mental retardation, the
120	120	court shall immediately forward a copy of the finding to the court
121	121	of criminal appeals.
122	122	(d) A finding under this section that the person was not a
123	123	person with mental retardation at the time of the commission of the
124	124	alleged offense does not preclude the person from filing a motion
125	125	under Article 46.05, Code of Criminal Procedure, and is not
126	126	admissible as evidence in a hearing under that article. A finding
127	127	under Article 46.05 that the person is competent to be executed does
128	128	not preclude the person from filing a motion under this section and
129	129	is not admissible as evidence in a hearing under this section.
130	130	SECTION 3. Chapter 46D, Code of Criminal Procedure, as
131	131	added by this Act, applies only to a trial that commences on or
132	132	after the effective date of this Act, regardless of whether the
133	133	alleged offense was committed before, on, or after that date.
134	134	SECTION 4. This Act takes effect September 1, 2009.