88R878 ADM-F     By: Miles S.B. No. 1353       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 to determine the issue.  The hearing must be held:                (1)  not earlier than the 180th day 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 under this chapter outside the presence of the jury if the   attorney can show good cause for not filing a request within the   time limit prescribed by Subsection (a).          Art. 46D.004.  APPOINTMENT OF DISINTERESTED EXPERT. (a)  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 AND ORDER RELATED TO   INTELLECTUAL DISABILITY. (a) As soon as practicable but not later   than the 30th day after the conclusion of a hearing under this   chapter, 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.          (b)  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.