HBA-EDN, AMW C.S.H.B. 236 77(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 236 By: Hinojosa Criminal Jurisprudence 3/12/2001 Committee Report (Substituted) 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. C.S.H.B. 236 enables a defendant in a capital case to request a hearing regarding whether the court shall appoint disinterested experts 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 confinement 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 this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. ANALYSIS C.S.H.B. 236 amends the Code of Criminal Procedure to authorize a defendant in a capital case to request the submission of a special issue regarding whether the defendant is a person with mental retardation (issue) 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 requires the court, on receiving a notice of the defendant's intent to request the submission of an issue, to hold a hearing to determine whether to appoint disinterested experts to examine the defendant to determine whether the defendant is a person with mental retardation. If the court finds that the defendant has presented sufficient evidence to justify the appointment of experts, the bill requires the court 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. The bill also requires the court to order the defendant to submit to an examination by experts appointed by 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 evidence existing in reports of disinterested experts appointed by the court, 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. C.S.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 confinement 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 September 1, 2001. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 236 is similar to the original bill in that the substitute requires a court to sentence the defendant to confinement in the institutional division of the Texas Department of Criminal Justice for life for a capital offense if the defendant is found to be a person with mental retardation and requires a hearing to determine whether the defendant is a person with mental retardation. The substitute removes the provision in the original bill which requires the judge hearing the capital case to determine whether the defendant is a person with mental retardation. The substitute differs from the original bill by requiring the court to appoint disinterested experts, if the court finds sufficient evidence to justify the appointment, to examine the defendant and determine whether the defendant is a person with mental retardation. The substitute removes provisions from the original bill regarding burden of proof, procedures for the hearing to determine whether the defendant is a person with mental retardation, and procedures for the trial of a defendant who is found by the judge not to be a person with mental retardation. The substitute adds provisions regarding the requirements of the court, disinterested experts appointed by the court, and the jury in determining whether the defendant is a person with mental retardation.