HBA-NMO, MPM H.B. 245 76(R)BILL ANALYSIS


Office of House Bill AnalysisH.B. 245
By: Gallego
Criminal Jurisprudence
7/27/1999
Enrolled


BACKGROUND AND PURPOSE 

The United States Supreme Court held that the United States Constitution
requires that a person sentenced to death be mentally competent to be
executed.  H.B. 245 prohibits the state from executing a person sentenced
to death if the person is mentally incompetent and establishes a procedure
to determine the person's level of mental competency. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 46, Code of Criminal Procedure, by adding
Article 46.04, as follows: 

Art. 46.04.  COMPETENCY TO BE EXECUTED.  (a)  Prohibits a person who is
incompetent to be executed from being executed. 

(b)  Provides that the trial court retains jurisdiction over motions filed
by or for a defendant under this article. 

(c) Provides that a motion filed under this article must identify the
proceeding in which the defendant was convicted, give the date of the final
judgment, set forth the fact that an execution date has been set if the
date has been set, and clearly set forth alleged facts in support of the
assertion that the defendant is presently incompetent to be executed.
Requires the defendant to attach affidavits, records, or other evidence
supporting the defendant's allegations or state why those items are not
attached.  Requires the defendant to identify any previous proceedings in
which the defendant challenged the defendant's competency in relation to
the conviction and sentence in question, including any challenge to the
defendant's competency to be executed, competency to stand trial, or sanity
at the time of the offense.  Provides that the motion must be verified by
the oath of some person on the defendant's behalf.  

(d)  Requires the trial court, on receipt of a motion filed under this
article, to determine whether the defendant has raised a substantial doubt
of the defendant's competency to be executed on the basis of the motion,
any attached documents, and any responsive pleadings; and if applicable,
the presumption of competency under Subsection (e). 

(e) Provides that a defendant is presumed competent and is not entitled to
a hearing on the subsequent motion filed under this article if the
defendant is determined to have previously filed a motion under this
article and has previously been determined to be competent to be executed,
unless the defendant makes a prima facie showing of a substantial change in
circumstances sufficient to raise a significant question as to the
defendant's competency to be executed at the time of filing the subsequent
motion under this article. 

(f) Requires the trial court, if it determines that the defendant has made
a substantial showing of incompetency, to order at least two mental health
experts to examine the  defendant using the standard described by
Subsection (h) to determine whether the defendant is incompetent to be
executed. 

(g) Requires the trial court, if it does not determine that the defendant
has made a substantial showing of incompetency, to deny the motion. 

(h) Provides that a defendant is incompetent to be executed if the
defendant does not understand that the defendant is to be executed, that
the execution is imminent, and the reason why the defendant is being
executed. 

(i)  Requires mental health experts who examine a defendant under this
article to provide within a time ordered by the trial court copies of their
reports to the attorney representing the state, the attorney representing
the defendant, and the court. 

(j) Provides that the defendant, by filing a motion under this article,
waives any claim of privilege with respect to and consents to the release
of all mental health and medical records relevant to whether the defendant
is incompetent to be executed. 

(k) Requires the clerk, if the trial court, on the basis of reports
provided under Subsection (i), the motion, any attached documents, any
responsive pleadings, and any evidence in the final competency hearing,
makes a finding by a preponderance of the evidence that the defendant is
incompetent to be executed, to send immediately to the court of criminal
appeals in accordance with Section 8(d) (Findings of Fact Without
Evidentiary Hearing), Article 11.071 (Procedure in Death Penalty Case), the
appropriate documents for that court's determination of whether any
existing execution date should be withdrawn and a stay of execution issued.
Requires the trial court, if a stay of execution is issued by the court of
criminal appeals, to periodically order that the defendant be reexamined by
mental health experts to determine whether the defendant is no longer
incompetent to be executed. 

(l) Authorizes the trial court, if it does not make the finding as
described by Subsection (k), to set an execution date as otherwise provided
by law. 

SECTION 2.  Effective date:  September 1, 1999.

SECTION 3.  Emergency clause.