By: Thompson, Dutton, Moody, et al. H.B. No. 1152
Substitute the following for H.B. No. 1152:
By: Miklos C.S.H.B. No. 1152
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 I, 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. DEFINITION. In this chapter, "mental
retardation" has the meaning assigned by Section 591.003, Health
and Safety Code.
Art. 46D.02. RESTRICTION ON DEATH PENALTY. Notwithstanding
Section 19.03, Penal Code, a defendant convicted of a capital
offense who is determined under this chapter to be a person with
mental retardation may not be sentenced to death.
Art. 46D.03. INTENT TO RAISE MENTAL RETARDATION AS ISSUE.
(a) A defendant in a capital case may request:
(1) that the judge hearing the case hold a pre-trial
hearing to determine whether the defendant is a person with mental
retardation; and
(2) the submission of a special issue to the jury under
Section 2(e)(2), Article 37.071.
(b) The defendant must file a notice of intent to request a
pretrial hearing under Section 2(e)(2), Article 37.071 with the
court and the attorney representing the state not later than the
60th day before the date the trial commences.
Art. 46D.04. PRETRIAL HEARING. A judge shall hold a
pretrial hearing. After presentation of the evidence, a judge shall
make a determination that the defendant is a person with mental
retardation or is not a person with mental retardation.
Art. 46D.05. BURDEN OF PROOF. 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 mental
retardation.
Art. 46D.06. SENTENCING ALTERNATIVES. (a) If the judge
determines that the defendant was a person with mental retardation
and the defendant is subsequently convicted of the offense, the
judge may sentence the defendant to imprisonment in the Texas
Department of Criminal Justice for life without parole.
(b) If the judge determines that the defendant was not a
person with mental retardation, 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 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 must make the determination of mental
retardation before the trial of the offense commences under Section
19.03, Penal Code.
Art. 46D.07. APPOINTMENT OF DISINTERESTED EXPERTS. On the
request of either party or on the judge's own motion, the judge
shall appoint two disinterested experts experienced and qualified
in the field of diagnosing mental retardation to independently
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.08. CONSTRUCTION WITH OTHER LAW. If the judge
determines that the defendant was not a person with mental
retardation 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.
Art. 46D.09. SENTENCING PHASE SPECIAL ISSUE FOR JURY. (a)
The court shall allow the jury to consider the evidence whether the
defendant is a person with mental retardation offered by the
attorney representing the state or the defendant.
(b)(1) If after considering all findings offered under
Subsection (a) the jury finds by a preponderance of the evidence
that the defendant is a person with mental retardation, the court
may sentence the defendant to imprisonment as provided by Section
2(j), Article 37.071.
(2) If the jury does not find that the defendant is a
person with mental retardation, the court may sentence the
defendant to death as provided by Section 2(g), Article 37.071.
Art. 46D.10. APPEAL. Upon conviction and sentencing, the
defendant and the state are entitled to appeal a finding of a court
described in this Article.
SECTION 2. Section 2(a)(1), Article 37.071, Code of
Criminal Procedure, is amended to read as follows:
(a)(1) If a defendant is tried for a capital offense in
which the state seeks the death penalty, on a finding that the
defendant is guilty of a capital offense, the court shall conduct a
separate sentencing proceeding to determine whether the defendant
shall be sentenced to death or life imprisonment without parole.
The proceeding shall be conducted in the trial court and, except as
provided by Article 44.29(c) of this code, before the trial jury as
soon as practicable. In the proceeding, evidence may be presented
by the state and the defendant or the defendant's counsel as to any
matter that the court deems relevant to sentence, including
evidence of the defendant's background or character or the
circumstances of the offense that mitigates against the imposition
of the death penalty, including evidence as to whether the
defendant is a person with mental retardation. This subdivision
shall not be construed to authorize the introduction of any
evidence secured in violation of the Constitution of the United
States or of the State of Texas. The state and the defendant or the
defendant's counsel shall be permitted to present argument for or
against sentence of death. The introduction of evidence of
extraneous conduct is governed by the notice requirements of
Section 3(g), Article 37.07. The court, the attorney representing
the state, the defendant, or the defendant's counsel may not inform
a juror or a prospective juror of the effect of a failure of a jury
to agree on issues submitted under Subsection (c) or (e).
SECTION 3. 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" has the meaning assigned
by Section 591.003, Health and Safety Code.
(b) A person with mental retardation may not be punished by
death.
SECTION 4. The change in law made by this Act applies only
to a capital case that commences on or after the effective date of
this Act. A capital case that commences before the effective date of
this Act is covered by the law in effect when the case commenced,
and the former law is continued in effect for that purpose.
SECTION 5. This Act takes effect September 1, 2009.