HBA-SEP H.B. 1247 77(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 1247 By: Turner, Sylvester Criminal Jurisprudence 2/18/2001 Introduced BACKGROUND AND PURPOSE Current law allows a person with mental retardation who is convicted of a capital crime to be sentenced to death. Questions have been raised concerning the current system in Texas and some believe that as a result of a mentally retarded defendant's level of intellect and inability to appreciate the wrongfulness of certain actions the mentally retarded defendant cannot intelligently participate in the trial process. House Bill 1247 directs the determination of whether a defendant has mental retardation to the beginning of the trial process and prohibits a defendant who at the time of the commission of the offense was a person with mental retardation from being sentenced to death. 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 (Section 46B.08, Code of Criminal Procedure) of this bill. ANALYSIS House Bill 1247 amends the Code of Criminal Procedure to prohibit a defendant, who at the time of commission of a capital offense was a person with mental retardation, from being sentenced to death. A defendant who has an intelligence quotient of 65 or less is presumed to be a person with mental retardation at the time of the commission of the alleged offense. The bill authorizes counsel for a defendant in a capital case to request, in writing and at any time before the trial commences, a hearing to determine whether the defendant was a person with mental retardation at the time of the commission of the alleged offense. The court is required to schedule a hearing and notify all interested parties of the request. The burden is on the defendant to prove by a preponderance of the evidence that the defendant was a person with mental retardation at the time of the commission of the alleged offense, and the state is authorized to offer evidence to rebut the presumption of mental retardation at the time of the commission of the alleged offense. If the court finds that the defendant was a person with mental retardation at the time of the commission of the alleged offense: _the jury is authorized to consider that finding in determining whether the defendant at that time had the mental state requisite for conviction of the offense; and _the defendant, if subsequently convicted of the offense, is required to be sentenced to life imprisonment in the institutional division of the Texas Department of Criminal Justice (life imprisonment). The bill provides that if the court finds that the defendant was not a person with mental retardation at the time of the commission of the alleged offense, the court is required to conduct the trial in the same manner as provided for any other capital case. At the trial of the offense, the jury is prohibited from being informed of the fact that the court has found that the defendant was not a person with mental retardation. The court, not later than 10 days before the date on which the trial on the offense of capital murder commences, must not make the finding or announce that the court will not make the finding. The bill requires the judge to permit the defendant, on request, to present at either or both phases of the trial, evidence of the defendant's assertion of mental retardation. All findings of fact and conclusions of law must be entered in the record of the case. The bill authorizes the defendant, at the punishment phase of the trial, to request the jury to determine whether the defendant was mentally retarded at the time of the commission of the alleged offense. The bill requires the judge to sentence the defendant to life imprisonment if the jury determines the issue in the affirmative. The bill requires the court to appoint, on the request of either party or on the court's own motion, a disinterested expert 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 authorizes the court to order the defendant to submit to an examination by the appointed experts. The defendant and the state are entitled to appeal an order of a court making a finding that the defendant was not a person with mental retardation at the time of the commission of the offense. The bill requires the court of criminal appeals to adopt rules as necessary for the administration of the appeals process established by interlocutory appeal. The appeal is a direct appeal to the court of criminal appeals, as provided by court rule. The bill requires the court of criminal appeals to give priority to the review of an appeal under interlocutory appeal over other cases before the court. EFFECTIVE DATE September 1, 2001.