HBA-EDN, AMW H.B. 236 77(R)BILL ANALYSIS Office of House Bill AnalysisH.B. 236 By: Hinojosa Criminal Jurisprudence 8/8/2001 Enrolled BACKGROUND AND PURPOSE In 1989, the United States Supreme Court decided in Penry v. Lynaugh that executing people who have mental retardation does not constitute cruel and unusual punishment. The decision did, however, provide for jury instructions to incorporate evidence of mental retardation as a possible mitigating factor in the imposition of the death penalty. Although the United States Supreme Court has not outlawed the execution of persons with mental retardation, there is some concern among Texans that the execution of these persons is unjust because persons with mental retardation may be less culpable for their crimes or may not have the capacity to understand the consequences of their actions. House Bill 236 prohibits a defendant convicted of a capital offense who is determined to be a person with mental retardation from being sentenced to death, enables a defendant in a capital case to request a hearing to determine if a defendant is a person with mental retardation, and requires the court to sentence a defendant found by a jury to be a person with mental retardation to imprisonment in the institutional division of the Texas Department of Criminal Justice for life. 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 of Texas in SECTION 1 (Article 46B.05, Code of Criminal Procedure) of this bill. ANALYSIS House Bill 236 amends the Code of Criminal Procedure to prohibit from being sentenced to death a defendant convicted of a capital offense who is determined to be a person with mental retardation. The bill authorizes a defendant in a capital case to request the submission of a special issue regarding whether the defendant is a person with mental retardation only if the defendant files a notice of intent to request the submission with the court and the attorney representing the state not later than the 30th day before the date the trial commences. The bill authorizes the defendant to file a petition for a hearing immediately after the jury returns a finding that circumstances do not warrant that a sentence of life imprisonment rather than a death sentence be imposed. The bill requires the court, on receiving the petition for a hearing, to appoint two 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. The bill also requires the court to order the defendant to submit to an examination by experts appointed by the court. After the examination of the defendant by the experts appointed by the court, the bill requires the court in a hearing to consider the findings of those experts and the findings of other experts, if any, offered by the attorney representing the state or the defendant. If after considering all findings the court finds by a preponderance of the evidence that the defendant is a person with mental retardation, the bill requires the court to sentence the defendant to imprisonment in the institutional division of the Texas Department of Criminal Justice for life. The bill requires the court to sentence the defendant to death if the court does not find by a preponderance of the evidence that the defendant is a person with mental retardation. H.B. 236 provides that the defendant and the state are entitled to appeal a finding of a court that the defendant is a person with mental retardation. The bill requires the Court of Criminal Appeals of Texas (court of criminal appeals) to adopt rules as necessary for the administration of the appeals process. The bill specifies that an appeal is a direct appeal to the court of criminal appeals and requires the court of criminal appeals, as provided by court rule, to give priority to the review of an appeal over other cases before the court. The bill authorizes the state and the defendant or the defendant's counsel, in the sentencing proceeding to determine whether the defendant shall be sentenced to death or life imprisonment, to present evidence as to whether the defendant is a person with mental retardation. If raised by the evidence, the bill requires the court, on the written request of the attorney representing the defendant, to instruct the jury that if the jury returns an affirmative finding to each issue submitted, the jury is required to answer the issue of whether the defendant is a person with mental retardation. The bill requires the court, on the written request of the attorney representing the defendant, to instruct the jury that if the jury answers that the defendant is a person with mental retardation, the court will sentence the defendant to imprisonment in the institutional division of the Texas Department of Criminal Justice for life. H.B. 236 also requires the court to charge the jury, in respect to answering the issue regarding whether the defendant is a person with mental retardation, that the jury is required to consider mitigating evidence to be evidence that a juror might regard as reducing the defendant's moral blameworthiness. The bill requires the court to sentence the defendant to imprisonment in the institutional division of the Texas Department of Criminal Justice for life if the jury returns an affirmative finding regarding whether the defendant is a person with mental retardation or is unable to answer whether the defendant is a person with mental retardation. EFFECTIVE DATE Vetoed.