88R1329 ADM-F     By: Thompson of Harris H.B. No. 381       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.  Article 44.01, Code of Criminal Procedure, is   amended by amending Subsection (a) and adding Subsection (a-1) to   read as follows:          (a)  The state is entitled to appeal an order of a court in a   criminal case if the order:                (1)  dismisses an indictment, information, or   complaint or any portion of an indictment, information, or   complaint;                (2)  arrests or modifies a judgment;                (3)  grants a new trial;                (4)  sustains a claim of former jeopardy;                (5)  grants a motion to suppress evidence, a   confession, or an admission, if jeopardy has not attached in the   case and if the prosecuting attorney certifies to the trial court   that the appeal is not taken for the purpose of delay and that the   evidence, confession, or admission is of substantial importance in   the case; or                (6)  is issued under Chapter 46D or 64.          (a-1)  The state's appeal of an order issued under Chapter   46D is a direct appeal to the court of criminal appeals. The court   of criminal appeals shall expeditiously review the appeal.          SECTION 2.  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)  "Deficits in adaptive behavior" means sufficient   deficits in adaptive functioning under prevailing medical   standards for determining intellectual disability.                (2)  "Developmental period" means the developmental   period of a person's life, as determined by prevailing medical   standards.                (3)  "Intellectual disability" means significantly   subaverage general intellectual functioning that is concurrent   with deficits in adaptive behavior and originates during the   developmental period.                (4)  "Significantly subaverage general intellectual   functioning" refers to a measured intelligence quotient on a   standardized psychometric instrument of approximately two or more   standard deviations below the age-group mean for the test used,   considering the standard error of measurement applicable to the   instrument.          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; DETERMINATION. (a)  The attorney   for a defendant in a capital case, not later than the first   anniversary of the date of the defendant's indictment, may request   in writing that the judge hearing the case hold a hearing to   determine whether the defendant is a person with an intellectual   disability.          (b)  On receipt of a request under this article, if the judge   determines that the request was timely filed, the judge shall hold a   hearing in accordance with this chapter to determine the issue.  The   hearing must be held:                (1)  not earlier than 180 days after the date that the   written request was submitted under Subsection (a); and                (2)  not later than the 120th day before the date the   trial is scheduled to begin.          (c)  If the attorney for a defendant files an untimely   request under Subsection (a), or after the time for filing a request   under Subsection (a) otherwise presents evidence that the defendant   is a person with an intellectual disability, the judge may hold a   hearing in accordance with this chapter if the attorney can show   good cause for not filing a request within the time limit prescribed   by Subsection (a).  The hearing may not be held before a jury   empaneled in the case.          Art. 46D.004.  APPOINTMENT OF DISINTERESTED EXPERT. (a)     After the judge receives a request under Article 46D.003, and on the   request of either party or on the judge's own motion, the judge   shall appoint a disinterested expert 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.          (b)  The judge may order the defendant to submit to an   examination by an expert appointed under this article.          (c)  An examination described by this article must be   narrowly tailored to determine whether the defendant has an   intellectual disability.          Art. 46D.005.  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)  The state may offer evidence to rebut evidence offered   by the defendant.          Art. 46D.006.  PREVAILING MEDICAL STANDARDS. Evidence   offered by either party for purposes of a hearing under this chapter   must be consistent with prevailing medical standards for the   diagnosis of intellectual disabilities.          Art. 46D.007.  DETERMINATION BY JURY AND ORDER RELATED TO   INTELLECTUAL DISABILITY. (a)  Except as provided by Subsection   (f), the judge shall empanel a jury solely for the purpose of   determining whether the defendant is a person with an intellectual   disability.  The judge shall empanel the jury in the same manner as   a jury is empaneled by the court for a felony other than a capital   felony.          (b)  After the conclusion of the hearing, the judge shall   instruct the jury to state in its verdict whether the defendant is a   person with an intellectual disability.          (c)  The jury's verdict that the defendant is a person with   an intellectual disability must be unanimous.          (d)  If the jury determines that the defendant is a person   with an intellectual disability, the judge shall issue an   appropriate order in accordance with this chapter that the   defendant is a person with an intellectual disability.          (e)  If the jury does not determine that the defendant is a   person with an intellectual disability, the judge shall conduct the   trial of the offense in the same manner as if a hearing under this   chapter had not been held. At the trial:                (1)  the trial jury may not be informed of the fact that   a hearing was held under this chapter; and                (2)  the defendant may present evidence of intellectual   disability as otherwise permitted by law.          (f)  The defendant may, with the consent of the attorney   representing the state, waive a hearing before a jury and request a   hearing before the judge under Article 46D.008.          Art. 46D.008.  DETERMINATION BY JUDGE AND ORDER RELATED TO   INTELLECTUAL DISABILITY. (a)  If a hearing before a jury is waived   in accordance with Article 46D.007(f), the hearing must be held   before the judge, outside the presence of a jury.          (b)  As soon as practicable but not later than the 30th day   after the conclusion of a hearing under this article, the judge   shall determine whether the defendant is a person with an   intellectual disability and issue an appropriate order. The order   must contain findings of fact explaining the judge's reasoning for   the determination and citing evidence in the record.          (c)  If the judge does not determine that the defendant is a   person with an intellectual disability, the judge shall conduct the   trial of the offense in the same manner as if a hearing under this   chapter had not been held. At the trial:                (1)  the jury may not be informed of the fact that the   judge held a hearing under this chapter; and                (2)  the defendant may present evidence of intellectual   disability as otherwise permitted by law.          SECTION 3.  The changes in law made by this Act apply 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, 2023.