SRC-BWC C.S.H.B. 236 77(R)    BILL ANALYSIS


Senate Research CenterC.S.H.B. 236
77R14521 GWK-DBy: Hinojosa (Ellis, Rodney)
Criminal Justice
5/9/2001
Committee Report (Substituted)


DIGEST 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

Rulemaking authority is expressly granted to the court of criminal appeals
in SECTION 1 (Article 46B.07, Code of Criminal Procedure) in this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends 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."

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), Penal Code, or Article 37.071. 

Art. 46B.03.  HEARING.  Authorizes counsel for a 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.  Requires the court, on receipt of a request under this section,
to notify all interested parties of the request and schedule a hearing on
the issue of mental retardation. 

Art. 46B.04.  BURDEN OF PROOF.  Provides that the burden, at a hearing
under this chapter, is on the defendant to prove by a preponderance of the
evidence that the defendant was a person with mental retardation as defined
by Section 591.003, Health and Safety Code, at the time of the commission
of the alleged offense.  Authorizes the state to offer evidence to rebut
the presumption of mental retardation or the defendant's claim. 

Art. 46B.05.  SENTENCING ALTERNATIVES.  Provides that 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, Article 37.071 does not apply to the defendant,
except that the court is required to sentence the defendant in the same
manner as if a jury in the case had returned an affirmative finding on the
issue of mitigation under Article 37.071.  Requires the court, if the court
finds that the defendant was not a person with mental retardation at the
time of the commission of the alleged offense, to conduct the trial in the
same manner as if a hearing under this chapter had not been held.  Provides
that at the trial of the offense, the jury is prohibited from being
informed of the fact that the court has found under this article that the
defendant was not a person with mental retardation, and the defendant is
authorized to present at trial evidence of mental disability as permitted
by Article 37.071. Requires the court, before the trial of the offense
under Section 19.03, Penal Code, commences, to make the finding described
by this section or announce that the court will not make the finding.   

Art. 46B.06.  APPOINTMENT OF DISINTERESTED EXPERTS.  Requires the court, on
the request of either party or on the court's own motion, 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.  Provides that the defendant and the
state are entitled to appeal an order of a court making a finding described
by Article 46B.05 or the court's decision not to make a finding under that
article.  Requires the court of criminal appeals to adopt rules as
necessary for the administration of the appeals process established by this
article.  Provides that an appeal under this article 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
under this article over other cases before the court. 

SECTION 2.  Provides that Chapter 46B, Code of Criminal Procedure, as added
by this Act, applies only to a trial that commences on or after the
effective date of this Act regardless of whether the alleged offense was
committed before, on, or after that date. 

SECTION 3.  Effective date: September 1, 2001.