HB 688

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
(a)  The state is entitled to appeal an order of a court in a
(1)  dismisses an indictment, information, or
complaint or any portion of an indictment, information, or
(2)  arrests or modifies a judgment;
(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
(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
(3)  "Intellectual disability" means significantly
subaverage general intellectual functioning that is concurrent
with deficits in adaptive behavior and originates during the
(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
Art. 46D.002.  RESTRICTION ON DEATH PENALTY.  A defendant
who is a person with an intellectual disability may not be sentenced
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
(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
(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
(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
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
(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
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
(b)  The state may offer evidence to rebut evidence offered
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
(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,
SECTION 4.  This Act takes effect September 1, 2025.