HBA-KMH S.B. 326 76(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 326 By: Ellis Criminal Jurisprudence 5/20/1999 Engrossed BACKGROUND AND PURPOSE Currently, the Texas Penal Code authorizes a court to sentence a mentally retarded person to death in capital murder cases. Some states that have banned capital punishment for the mentally retarded assert that individuals with an I.Q. of 70 or less should not be executed, since punishment for an offense should be related to the blameworthiness of the offender. As the most extreme sanction available to the state, the death penalty is reserved for an offender who has the highest degree of blameworthiness for an extraordinary, aggravated crime. Although a mentally retarded person may be capable of telling right from wrong and may be held responsible for criminal behavior, a mentally retarded person by definition has sub-average intellectual functioning with concurrent deficits in socially adaptive behavior. S.B. 326 authorizes a defendant to claim mental retardation at the time of the commission of an offense, prohibits a court from sentencing a defendant to death if found mentally retarded at the time of the commission of the offense, and entitles the state and the defendant to an interlocutory appeal on the issue. The intelligence quotient associated with this bill is 65 or less. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the court of criminal appeals in SECTION 1 (Article 46B.07, Code of Criminal Procedure) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends the Code of Criminal Procedure by adding Chapter 46B, as follows: CHAPTER 46B. CAPITAL CASE: EFFECT OF MENTAL RETARDATION Art. 46B.01. DEFINITION. Defines "mental retardation" with the meaning assigned by Section 591.003 (Definitions), Health and Safety Code. Art. 46B.02. RESTRICTION ON DEATH PENALTY. Prohibits a defendant who at the time of commission of a capital offense was a person with mental retardation from being sentenced to death, notwithstanding Section 19.03(b) (Capital Murder), Penal Code, or Article 37.071 (Procedure in Capital Case), Code of Criminal Procedure. Art. 46B.03. HEARING. (a) Authorizes counsel for the defendant in a capital case, at any time before the trial commences, to request that the judge hearing the case hold a hearing to determine whether the defendant was a person with mental retardation at the time of the commission of the alleged offense. (b) Requires the court, on receipt of a request under Subsection (a), to notify all interested parties of the request and schedule a hearing on the issue of mental retardation. Art. 46B.04. BURDEN OF PROOF. (a) Provides that the burden is on the defendant to prove by a preponderance of evidence that the defendant was a person with mental retardation at the time of the commission of the alleged offense, at a hearing under this chapter. (b) Provides that a defendant with an intelligence quotient of 65 or less is presumed to be a person who was a person with mental retardation at the time of the commission of the alleged offense. (c) Authorizes the state to offer evidence to rebut the presumption of mental retardation of the defendant's claim. Art. 46B.05. SENTENCING ALTERNATIVES. (a) Provides that the provisions of Article 37.071, do not apply to the defendant, and requires the court to sentence the defendant to life imprisonment in the institutional division of the Texas Department of Criminal Justice, if the court finds that the defendant was a person with mental retardation at the time of the commission of the alleged offense and the defendant is subsequently convicted of the offense. (b) Requires the court to conduct the trial in the same manner as if a hearing under this chapter had not been held if the defendant is found to not be a person with mental retardation at the time of the commission of the alleged offense. Prohibits the jury, at the trial of the offense, from being informed of the fact that the court has found under this article that the defendant was not a person with mental retardation. Authorizes the defendant to present at trial evidence of mental disability as permitted by Article 37.071. (c) Provides that the court must, not later than 10 days before the date on which the trial of the offense under Section 19.03, Penal Code, commences, make a finding described by Subsection (b) or announce that the court will not make a finding. Art. 46B.06. APPOINTMENT OF DISINTERESTED EXPERTS. Requires the court, on its own motion or on request of either party, to appoint disinterested experts experienced and qualified in the field of diagnosing mental retardation to examine the defendant and determine whether the defendant is a person with mental retardation. Authorizes the court to order the defendant to submit to an examination by experts appointed under this article. Art. 46B.07. INTERLOCUTORY APPEAL. (a) Entitles the defendant and the state to appeal an order of a court making a finding described by Article 46B.05(b) or the court's decision not to make a finding under that article. (b) Requires the court of criminal appeals to adopt rules as necessary for the administration of the appeals process established by this article. (c) Provides that an appeal under this article is a direct appeal to the court of criminal appeals. Requires the court of criminal appeals, as provided by court rule, to give priority to the review of an appeal under this article over other cases before the court. SECTION 2. Effective date: September 1, 1999. Makes application of this Act prospective. Provides that if the federal constitution or the Texas Constitution are authoritatively construed to prohibit the purely prospective application of Chapter 46B, Code of Criminal Procedure, as added by this Act, the chapter is required to be deemed to have no force whatsoever and apply neither prospectively nor retroactively. SECTION 3. Emergency clause.