82R7021 JSC-F
By: Ellis S.B. No. 1079
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 1, 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. DEFINITIONS. In this chapter:
(1) "Adaptive behavior" means the effectiveness with
or degree to which a person meets generally recognized standards of
personal independence and social responsibility by using learned
conceptual, social, and practical skills in everyday life.
(2) "Mental retardation" means significant
limitations in intellectual functioning that are concurrent with
significant deficits in adaptive behavior, including conceptual,
social, and practical skills, if those characteristics originate
during the developmental period.
(3) "Person with mental retardation" means a person
with significant limitations in intellectual functioning that are
concurrent with significant deficits in adaptive behavior,
including conceptual, social, and practical skills, if those
characteristics originated during the person's developmental
period, as determined by a clinician in the exercise of clinical
judgment.
(4) "Significant limitations in intellectual
functioning" refers to a measured intelligence quotient on a
standardized psychometric instrument of two or more standard
deviations below the age-group mean for the test used.
Art. 46D.02. RESTRICTION ON DEATH PENALTY. A defendant who
at the time of commission of a capital offense was a person with
mental retardation may not be sentenced to death.
Art. 46D.03. HEARING. (a) Counsel for a defendant in a
capital case, not later than the 30th day before the trial
commences, may request that the judge hearing the case hold a
hearing to determine whether the defendant was a person with mental
retardation at the time of the commission of the alleged offense.
(b) If the defendant does not give timely notice as provided
by Subsection (a), the court may not hold a hearing described by
this article unless the court finds that good cause existed for
failure to give timely notice.
(c) On receipt of a request under Subsection (a), the judge
shall notify all interested parties of the request. If the judge
determines that there is evidence to support a finding of mental
retardation, a jury shall be impaneled to determine whether the
defendant was a person with mental retardation at the time of the
commission of the alleged offense. A defendant may waive the right
to jury determination under this subsection and request that the
judge make the determination if the court and the prosecuting
attorney do not object.
(d) Instructions to the jury submitting the issue of mental
retardation shall require the jury to state in its verdict whether
the defendant was a person with mental retardation at the time of
the commission of the alleged offense.
(e) If the jury is unable to agree on a unanimous verdict
after a reasonable opportunity to deliberate, the judge shall
declare a mistrial, discharge the jury, and impanel another jury to
determine whether the defendant was a person with mental
retardation at the time of the commission of the alleged offense.
(f) At the conclusion of the hearing under this article, the
judge shall dismiss the jury, and the members of that jury may not
serve on a jury in the subsequent trial of the case.
Art. 46D.04. 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 was a person with mental
retardation at the time of the commission of the alleged offense.
(b) A defendant who has an intelligence quotient of 75 or
less is presumed to be a person who was a person with mental
retardation at the time of the commission of the alleged offense.
(c) A determination made before the commission of the
alleged offense by a qualified institution or individual, including
a psychologist, an educational institution, a local mental health
and mental retardation authority, the United States Social Security
Administration, a court, or another governmental agency or social
service provider that a defendant is a person with mental
retardation, as defined by the law of this state or any other state,
creates an evidentiary presumption that the defendant was a person
with mental retardation at the time of the commission of the alleged
offense.
(d) The state may offer evidence to rebut a presumption of
mental retardation or the defendant's claim.
Art. 46D.05. SENTENCING ALTERNATIVES. (a) If the judge or
jury, whichever is the finder of fact, determines that the
defendant was a person with mental retardation at the time of the
commission of the alleged offense and the defendant is subsequently
convicted of the offense, Article 37.071 does not apply to the
defendant, and the judge shall sentence the defendant to
imprisonment in the Texas Department of Criminal Justice for life
without parole.
(b) If the judge or jury, whichever is the finder of fact,
determines that the defendant was not a person with mental
retardation at the time of the commission of the alleged offense,
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 or a jury 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 or jury, whichever is the finder of fact,
must, before the trial of the offense under Section 19.03, Penal
Code, commences, make the determination described by Subsection
(b).
Art. 46D.06. APPOINTMENT OF DISINTERESTED EXPERTS. On the
request of either party or on the judge's own motion, the judge
shall appoint disinterested experts experienced and qualified in
the field of diagnosing mental retardation to 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.07. INTERLOCUTORY APPEAL. (a) The defendant and
the state are entitled to appeal a determination described by
Article 46D.05(b).
(b) The court of criminal appeals shall adopt rules as
necessary for the administration of the appeals process established
by this article.
(c) An appeal under this article is a direct appeal to the
court of criminal appeals, and the court of criminal appeals, as
provided by court rule, shall give priority to the review of an
appeal under this article over other cases before the court.
Art. 46D.08. CONSTRUCTION WITH OTHER LAW. If the judge or
jury, whichever is the finder of fact, determines that the
defendant was not a person with mental retardation at the time of
the commission of the alleged offense 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.
SECTION 2. 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" and "person with mental
retardation" have the meanings assigned by Article 46D.01, Code of
Criminal Procedure.
(b) A person may not be punished by death for an offense
committed while the person was a person with mental retardation.
(c) A person who is sentenced to death at a trial that
commences before September 1, 2011, may submit to the convicting
court a motion for a hearing on the issue of mental retardation, to
be conducted in the same manner as a hearing under Chapter 46D, Code
of Criminal Procedure. On a finding by the court that documentary
evidence supports an assertion that the person was a person with
mental retardation at the time of the commission of the alleged
offense, the court may order a hearing that, except for occurring
after sentencing, is conducted in the same manner as a hearing under
Chapter 46D, Code of Criminal Procedure. After making a finding as
to whether the person was a person with mental retardation, the
court shall immediately forward a copy of the finding to the court
of criminal appeals.
(d) A finding under this section that the person was not a
person with mental retardation at the time of the commission of the
alleged offense does not preclude the person from filing a motion
under Article 46.05, Code of Criminal Procedure, and is not
admissible as evidence in a hearing under that article. A finding
under Article 46.05 that the person is competent to be executed does
not preclude the person from filing a motion under this section and
is not admissible as evidence in a hearing under this section.
SECTION 3. Chapter 46D, Code of Criminal Procedure, as
added by this Act, applies 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, 2011.