85S10652 ADM-D
By: Rose H.B. No. 136
A BILL TO BE ENTITLED
AN ACT
relating to the applicability of the death penalty to a capital
offense committed by a person with severe mental illness.
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 SEVERE MENTAL ILLNESS
Art. 46D.001. DEFINITION. In this chapter, "person with
severe mental illness" means a person who has a psychiatric illness
listed in Section 1355.001(1), Insurance Code, and as a result of
that illness has active psychotic symptoms that substantially
impair the person's capacity to:
(1) appreciate the nature, consequences, or
wrongfulness of the person's conduct;
(2) exercise rational judgment in relation to the
person's conduct; or
(3) conform the person's conduct to the requirements
of the law.
Art. 46D.002. RESTRICTION ON DEATH PENALTY. A defendant
who at the time of commission of a capital offense was a person with
severe mental illness may not be sentenced to death.
Art. 46D.003. HEARING. (a) Not later than the 30th day
before the date trial begins, counsel for a defendant in a capital
case may file notice requesting that the judge hearing the case hold
a hearing to determine whether the defendant was a person with
severe mental illness at the time of the commission of the alleged
offense.
(b) Notice filed under Subsection (a) must be accompanied by
evidence supporting the claim that the defendant was a person with
severe mental illness at the time of the commission of the alleged
offense.
(c) If the defendant does not file timely notice as provided
by Subsection (a), the court may not hold a hearing under this
article unless the court finds that good cause existed for failure
to file timely notice.
(d) On receipt of notice under Subsection (a), the judge
shall notify all interested parties of the notice. If the judge
determines that the notice was timely and was accompanied by the
supporting evidence required by Subsection (b), a jury shall be
impaneled to determine whether the defendant was a person with
severe mental illness 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 judge and the prosecuting attorney do not
object.
(e) If the judge finds that the notice was not timely filed
or was not accompanied by the supporting evidence required by
Subsection (b), the judge shall:
(1) deny the defendant's request;
(2) make written findings of fact explaining the
grounds for denial;
(3) provide the findings of fact to all interested
parties; and
(4) file a copy of the findings of fact with the papers
in the case.
(f) Instructions submitted to the jury on the issue of
severe mental illness shall require the jury to state in its verdict
whether the defendant was a person with severe mental illness at the
time of the commission of the alleged offense.
(g) 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 severe mental
illness at the time of the commission of the alleged offense.
(h) 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 any subsequent trial of the case.
Art. 46D.004. 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 was a person with severe mental
illness at the time of the commission of the alleged offense.
Art. 46D.005. PRESUMPTION OF SEVERE MENTAL ILLNESS. (a) A
determination made before the commission of the alleged offense by
a qualified institution or individual, including a psychologist, an
educational institution, a local intellectual and developmental
disability authority, the United States Social Security
Administration, a court, or another governmental agency or social
service provider, that a defendant had symptoms of a psychiatric
illness listed in Section 1355.001(1), Insurance Code, creates an
evidentiary presumption that the defendant was a person with severe
mental illness at the time of the commission of the alleged offense.
(b) The state may offer evidence to rebut a presumption of
severe mental illness.
Art. 46D.006. SENTENCING ALTERNATIVES. (a) If the judge or
jury, whichever is the finder of fact, determines that the
defendant was a person with severe mental illness at the time of the
commission of the alleged offense and the defendant is subsequently
convicted of capital murder, 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 severe mental
illness 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 chapter that the defendant
was not a person with severe mental illness; and
(2) the defendant may present evidence of mental
disability as permitted by Article 37.071.
(c) The judge or jury, whichever is the finder of fact, must
make any determination described by this article before the date
the trial of the alleged capital offense begins.
Art. 46D.007. APPOINTMENT OF DISINTERESTED EXPERTS. (a) On
the request of either party or on the judge's own motion, the judge
shall appoint one or more disinterested experts experienced and
qualified in the field of diagnosing mental illness to examine the
defendant and determine whether the defendant is a person with
severe mental illness.
(b) The judge may, after giving proper notice to the
defendant, order the defendant to submit to an examination by
experts appointed under this article.
(c) An examination described by this article:
(1) must be narrowly tailored to determine whether the
defendant has the specific illness claimed; and
(2) may not include:
(A) any discussion of the alleged offense;
(B) personality or intellectual testing; or
(C) a future danger assessment.
(d) An expert appointed under this article must provide the
counsel for the defendant with all underlying notes and data
related to the examination.
Art. 46D.008. STATEMENTS NOT ADMISSIBLE. No statement made
by the defendant in a hearing or examination under this chapter may
be admitted into evidence during the trial of the alleged offense.
Art. 46D.009. INTERLOCUTORY APPEAL. Neither the defendant
nor the state is entitled to an interlocutory appeal of a
determination made under this chapter.
SECTION 2. Chapter 46D, Code of Criminal Procedure, as
added by this Act, applies only to a trial that begins on or after
the effective date of this Act, regardless of whether the alleged
offense was committed before, on, or after that date.
SECTION 3. This Act takes effect December 1, 2017.