85R5861 ADM-D     By: Miles S.B. No. 1740       A BILL TO BE ENTITLED   AN ACT   relating to the applicability of the death penalty to a capital   offense committed by a person with an intellectual disability.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.   Title 1, Code of Criminal Procedure, is amended   by adding Chapter 46D to read as follows:   CHAPTER 46D. CAPITAL CASE:  EFFECT OF INTELLECTUAL DISABILITY          Art. 46D.001.  DEFINITIONS. In this chapter:                (1)  "Adaptive behavior" means the effectiveness with   or degree to which a person meets generally recognized standards of   personal independence and social responsibility by using learned   conceptual, social, and practical skills in everyday life.                (2)  "Intellectual disability" means significant   limitations in intellectual functioning that are concurrent with   significant deficits in adaptive behavior, including conceptual,   social, and practical skills, if those characteristics originate   during the developmental period.                (3)  "Person with an intellectual disability" means a   person with significant limitations in intellectual functioning   that are concurrent with significant deficits in adaptive behavior,   including conceptual, social, and practical skills, if those   characteristics originated during the person's developmental   period, as determined by a clinician in the exercise of clinical   judgment.                (4)  "Significant limitations in intellectual   functioning" refers to a measured intelligence quotient on a   standardized psychometric instrument of two or more standard   deviations below the age-group mean for the test used.          Art. 46D.002.  RESTRICTION ON DEATH PENALTY.  A defendant   who is a person with an intellectual disability may not be sentenced   to death.          Art. 46D.003.  HEARING.  (a)  Counsel for a defendant in a   capital case, not later than the 30th day before the trial   commences, may request that the judge hearing the case hold a   hearing to determine whether the defendant is a person with an   intellectual disability.          (b)  If the defendant does not give timely notice as provided   by Subsection (a), the court may not hold a hearing described by   this article unless the court finds that good cause existed for   failure to give timely notice.          (c)  On receipt of a request under Subsection (a), the judge   shall notify all interested parties of the request. If the judge   determines that there is evidence to support a finding that the   defendant is a person with an intellectual disability, a jury shall   be impaneled to determine that issue. A defendant may waive the   right to jury determination under this subsection and request that   the judge make the determination if the court and the prosecuting   attorney do not object.          (d)  Instructions to the jury submitting the issue of whether   the defendant is a person with an intellectual disability shall   require the jury to state its finding on that issue in the verdict.          (e)  If the jury is unable to agree on a unanimous verdict   after a reasonable opportunity to deliberate, the judge shall   declare a mistrial, discharge the jury, and impanel another jury to   determine whether the defendant is a person with an intellectual   disability.          (f)  At the conclusion of the hearing under this article, the   judge shall dismiss the jury, and the members of that jury may not   serve on a jury in the subsequent trial of the case.          Art. 46D.004.  BURDEN OF PROOF.  (a)  At a hearing under this   chapter, the burden is on the defendant to prove by a preponderance   of the evidence that the defendant is a person with an intellectual   disability.          (b)  A defendant who has an intelligence quotient of 75 or   less is presumed to be a person with an intellectual disability.          (c)  A determination made by a qualified institution or   individual, including a psychologist, an educational institution,   a local mental health authority, a local intellectual and   developmental disability authority, the United States Social   Security Administration, a court, or another governmental agency or   social service provider that a defendant is a person with an   intellectual disability, as defined by the law of this state or any   other state, creates an evidentiary presumption that the defendant   is a person with an intellectual disability.          (d)  The state may offer evidence to rebut the defendant's   claim or a presumption under Subsection (b) or (c).          Art. 46D.005.  SENTENCING ALTERNATIVES.  (a)  If the judge or   jury, whichever is the finder of fact, determines that the   defendant is a person with an intellectual disability and the   defendant is subsequently convicted of the alleged offense, Article   37.071 does not apply to the defendant, and the judge shall sentence   the defendant to imprisonment in the Texas Department of Criminal   Justice for life without parole.          (b)  If the judge or jury, whichever is the finder of fact,   determines that the defendant is not a person with an intellectual   disability, the judge shall conduct the trial in the same manner as   if a hearing under this chapter had not been held. At the trial of   the offense:                (1)  the jury may not be informed of the fact that the   judge or a jury has determined under this article that the defendant   is not a person with an intellectual disability; and                (2)  the defendant may present evidence of intellectual   disability as permitted by Article 37.071.          (c)  The judge or jury, whichever is the finder of fact,   must, before the trial of the alleged offense commences, make a   determination under Subsection (a) or (b).          Art. 46D.006.  APPOINTMENT OF DISINTERESTED EXPERTS.  On the   request of either party or on the judge's own motion, the judge   shall appoint disinterested experts experienced and qualified in   the field of diagnosing intellectual disabilities to examine the   defendant and determine whether the defendant is a person with an   intellectual disability. The judge may order the defendant to   submit to an examination by experts appointed under this article.          Art. 46D.007.  INTERLOCUTORY APPEAL.  (a)  The defendant and   the state are entitled to appeal a determination described by   Article 46D.005(b).          (b)  The court of criminal appeals shall adopt rules as   necessary for the administration of the appeals process established   by this article.          (c)  An appeal under this article is a direct appeal to the   court of criminal appeals, and the court of criminal appeals, as   provided by court rule, shall give priority to the review of an   appeal under this article over other cases before the court.          Art. 46D.008.  CONSTRUCTION WITH OTHER LAW.  If the judge or   jury, whichever is the finder of fact, determines that the   defendant is not a person with an intellectual disability and the   defendant is subsequently convicted of the alleged offense, the   fact finder's determination:                (1)  does not preclude the defendant from filing a   motion under Article 46.05; and                (2)  notwithstanding Article 46.05(j), is not   admissible as evidence in a hearing under Article 46.05.          SECTION 2.   Chapter 6, Penal Code, is amended by adding   Section 6.05 to read as follows:          Sec. 6.05.  INTELLECTUAL DISABILITY AFFECTING DEATH   SENTENCE.  (a) In this section, "intellectual disability" and   "person with an intellectual disability" have the meanings assigned   by Article 46D.001, Code of Criminal Procedure.          (b)  A person with an intellectual disability may not be   punished by death.          (c)  A person who is sentenced to death at a trial that   commences before September 1, 2017, may submit to the convicting   court a motion for a hearing on the issue of whether the person is a   person with an intellectual disability, to be conducted in the same   manner as a hearing under Chapter 46D, Code of Criminal Procedure.   On a finding by the court that documentary evidence supports an   assertion that the person is a person with an intellectual   disability, the court may order a hearing that, except for   occurring after sentencing, is conducted in the same manner as a   hearing under Chapter 46D, Code of Criminal Procedure.  After   making a finding as to whether the person is a person with an   intellectual disability, the court shall immediately forward a copy   of the finding to the court of criminal appeals.          (d)  A finding under this section that the person is not a   person with an intellectual disability does not preclude the person   from filing a motion under Article 46.05, Code of Criminal   Procedure, and is not admissible as evidence in a hearing under that   article.  A finding under Article 46.05 that the person is competent   to be executed does not preclude the person from filing a motion   under this section and is not admissible as evidence in a hearing   under this section.          SECTION 3.  Chapter 46D, 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 4.   This Act takes effect September 1, 2017.