By: Thompson of Harris, Leach, Moody, White, H.B. No. 1139
Walle, et al.
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. Article 44.01, Code of Criminal Procedure, is
amended by amending Subsection (a) and adding Subsection (a-1) to
read as follows:
(a) The state is entitled to appeal an order of a court in a
criminal case if the order:
(1) dismisses an indictment, information, or
complaint or any portion of an indictment, information, or
complaint;
(2) arrests or modifies a judgment;
(3) grants a new trial;
(4) sustains a claim of former jeopardy;
(5) grants a motion to suppress evidence, a
confession, or an admission, if jeopardy has not attached in the
case and if the prosecuting attorney certifies to the trial court
that the appeal is not taken for the purpose of delay and that the
evidence, confession, or admission is of substantial importance in
the case; or
(6) is issued under Chapter 46E or 64.
(a-1) The state's appeal of an order issued under Chapter
46E is a direct appeal to the court of criminal appeals. The court
of criminal appeals shall expeditiously review the appeal.
SECTION 2. T
itle 1, Code of Criminal Procedure, is amended
by adding Chapter 46E to read as follows:
CHAPTER 46E. CAPITAL CASE: EFFECT OF INTELLECTUAL DISABILITY
Art. 46E.001. DEFINITIONS. In this chapter:
(1) "Deficits in adaptive behavior" means sufficient
deficits in adaptive functioning under prevailing medical
standards for determining intellectual disability.
(2) "Developmental period" means the developmental
period of a person's life, as determined by prevailing medical
standards.
(3) "Intellectual disability" means significantly
subaverage general intellectual functioning that is concurrent
with deficits in adaptive behavior and originates during the
developmental period.
(4) "Significantly subaverage general intellectual
functioning" refers to a measured intelligence quotient on a
standardized psychometric instrument of approximately two or more
standard deviations below the age-group mean for the test used,
considering the standard error of measurement applicable to the
instrument.
Art. 46E.002. RESTRICTION ON DEATH PENALTY. A defendant
who is a person with an intellectual disability may not be sentenced
to death.
Art. 46E.003. HEARING; DETERMINATION. (a) The attorney
for a defendant in a capital case, not later than the first
anniversary of the date of the defendant's indictment, may request
in writing that the judge hearing the case hold a hearing to
determine whether the defendant is a person with an intellectual
disability.
(b) On receipt of a request under this article, if the judge
determines that the request was timely filed, the judge shall hold a
hearing to determine the issue. The hearing must be held:
(1) not earlier than 180 days after the date that the
written request was submitted under Subsection (a); and
(2) not later than the 120th day before the date the
trial is scheduled to begin.
(c) If the attorney for a defendant files an untimely
request under Subsection (a), or after the time for filing a request
under Subsection (a) otherwise presents evidence that the defendant
is a person with an intellectual disability, the judge may hold a
hearing under this chapter outside the presence of the jury if the
attorney can show good cause for not filing a request within the
time limit prescribed by Subsection (a).
Art. 46E.004. APPOINTMENT OF DISINTERESTED EXPERT. (a) On
the request of either party or on the judge's own motion, the judge
shall appoint a disinterested expert 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.
(b) The judge may order the defendant to submit to an
examination by an expert appointed under this article.
(c) An examination described by this article must be
narrowly tailored to determine whether the defendant has an
intellectual disability.
Art. 46E.005. 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) The state may offer evidence to rebut evidence offered
by the defendant.
Art. 46E.006. PREVAILING MEDICAL STANDARDS. Evidence
offered by either party for purposes of a hearing under this chapter
must be consistent with prevailing medical standards for the
diagnosis of intellectual disabilities.
Art. 46E.007. DETERMINATION AND ORDER RELATED TO
INTELLECTUAL DISABILITY. (a) As soon as practicable but not later
than the 30th day after the conclusion of a hearing under this
chapter, the judge shall determine whether the defendant is a
person with an intellectual disability and issue an appropriate
order. The order must contain findings of fact explaining the
judge's reasoning for the determination and citing evidence in the
record.
(b) If the judge does not determine that the defendant is a
person with an intellectual disability, the judge shall conduct the
trial of the offense in the same manner as if a hearing under this
chapter had not been held. At the trial:
(1) the jury may not be informed of the fact that the
judge held a hearing under this chapter; and
(2) the defendant may present evidence of intellectual
disability as otherwise permitted by law.
SECTION 3. The changes in law made by this Act apply 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, 2019.