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.