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.