Texas Code of Criminal Procedure - Article 46.05. Competency To Be Executed
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Art. 46.05. COMPETENCY TO BE EXECUTED. (a) A person who is
incompetent to be executed may not be executed.
(b) The trial court retains jurisdiction over motions filed
by or for a defendant under this article.
(c) A motion filed under this article must identify the
proceeding in which the defendant was convicted, give the date of
the final judgment, set forth the fact that an execution date has
been set if the date has been set, and clearly set forth alleged
facts in support of the assertion that the defendant is presently
incompetent to be executed. The defendant shall attach affidavits,
records, or other evidence supporting the defendant's allegations
or shall state why those items are not attached. The defendant
shall identify any previous proceedings in which the defendant
challenged the defendant's competency in relation to the conviction
and sentence in question, including any challenge to the
defendant's competency to be executed, competency to stand trial,
or sanity at the time of the offense. The motion must be verified by
the oath of some person on the defendant's behalf.
(d) On receipt of a motion filed under this article, the
trial court shall determine whether the defendant has raised a
substantial doubt of the defendant's competency to be executed on
the basis of:
(1) the motion, any attached documents, and any responsive
pleadings; and
(2) if applicable, the presumption of competency under
Subsection (e).
(e) If a defendant is determined to have previously filed a
motion under this article, and has previously been determined to be
competent to be executed, the previous adjudication creates a
presumption of competency and the defendant is not entitled to a
hearing on the subsequent motion filed under this article, unless
the defendant makes a prima facie showing of a substantial change in
circumstances sufficient to raise a significant question as to the
defendant's competency to be executed at the time of filing the
subsequent motion under this article.
(f) If the trial court determines that the defendant has
made a substantial showing of incompetency, the court shall order
at least two mental health experts to examine the defendant using
the standard described by Subsection (h) to determine whether the
defendant is incompetent to be executed.
(g) If the trial court does not determine that the defendant
has made a substantial showing of incompetency, the court shall
deny the motion.
(h) A defendant is incompetent to be executed if the
defendant does not understand:
(1) that he or she is to be executed and that the execution
is imminent; and
(2) the reason he or she is being executed.
(i) Mental health experts who examine a defendant under this
article shall provide within a time ordered by the trial court
copies of their reports to the attorney representing the state, the
attorney representing the defendant, and the court.
(j) By filing a motion under this article, the defendant
waives any claim of privilege with respect to, and consents to the
release of, all mental health and medical records relevant to
whether the defendant is incompetent to be executed.
(k) If, on the basis of reports provided under Subsection
(i), the motion, any attached documents, any responsive pleadings,
and any evidence introduced in the final competency hearing, the
trial court makes a finding by a preponderance of the evidence that
the defendant is incompetent to be executed, the clerk shall send
immediately to the court of criminal appeals in accordance with
Section 8(d), Article 11.071, the appropriate documents for that
court's determination of whether any existing execution date should
be withdrawn and a stay of execution issued. If a stay of execution
is issued by the court of criminal appeals, the trial court
periodically shall order that the defendant be reexamined by mental
health experts to determine whether the defendant is no longer
incompetent to be executed.
(l) If the trial court does not make the finding as
described by Subsection (k), the court may set an execution date as
otherwise provided by law.
Added by Acts 1999, 76th Leg., ch. 654, Sec. 1, eff. Sept. 1, 1999.
Renumbered from Vernon's Ann. C.C.P. art. 46.04 by Acts 2001, 77th
Leg., ch. 1420, Sec. 21.001(13), eff. Sept. 1, 2001.
Article: 45.102 45.103 45.201 45.202 45.203 46.03 46.04 46.05 47.01 47.01a 47.02 47.03 47.04 47.05 47.06
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Last modified: August 10, 2007
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