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.