83R676 GCB-F
By: Ellis S.B. No. 750
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. 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.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) "Intellectual disability" 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 an intellectual disability" 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
is a person with an intellectual disability 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 is a person with an
intellectual disability.
(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 that the
defendant is a person with an intellectual disability, a jury shall
be impaneled to determine that issue. 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 whether
the defendant is a person with an intellectual disability shall
require the jury to state its finding on that issue in the verdict.
(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 is a person with an intellectual
disability.
(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 is a person with an intellectual
disability.
(b) A defendant who has an intelligence quotient of 75 or
less is presumed to be a person with an intellectual disability.
(c) A determination made 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 an intellectual disability, as defined by the law of
this state or any other state, creates an evidentiary presumption
that the defendant is a person with an intellectual disability.
(d) The state may offer evidence to rebut the defendant's
claim or a presumption under Subsection (b) or (c).
Art. 46D.05. SENTENCING ALTERNATIVES. (a) If the judge or
jury, whichever is the finder of fact, determines that the
defendant is a person with an intellectual disability and the
defendant is subsequently convicted of the alleged 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 is not a person with an intellectual
disability, 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
is not a person with an intellectual disability; and
(2) the defendant may present at trial evidence of
intellectual disability as permitted by Article 37.071.
(c) The judge or jury, whichever is the finder of fact,
must, before the trial of the alleged offense commences, make a
determination under Subsection (a) or (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 intellectual disabilities to examine the
defendant and determine whether the defendant is a person with an
intellectual disability. 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 is not a person with an intellectual disability and the
defendant is subsequently convicted of the alleged 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. INTELLECTUAL DISABILITY AFFECTING DEATH
SENTENCE. (a) In this section, "intellectual disability" and
"person with an intellectual disability" have the meanings assigned
by Article 46D.01, Code of Criminal Procedure.
(b) A person with an intellectual disability may not be
punished by death.
(c) A person who is sentenced to death at a trial that
commences before September 1, 2013, may submit to the convicting
court a motion for a hearing on the issue of whether the person is a
person with an intellectual disability, 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 is a person with an intellectual
disability, 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 is a person with an
intellectual disability, 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 is not a
person with an intellectual disability 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, 2013.