1-1  By:  Gallego, et al. (Senate Sponsor - Turner)         H.B. No. 798
    1-2        (In the Senate - Received from the House May 10, 1993;
    1-3  May 11, 1993, read first time and referred to Committee on Criminal
    1-4  Justice; May 25, 1993, reported favorably by the following vote:
    1-5  Yeas 6, Nays 0; May 25, 1993, sent to printer.)
    1-6                            COMMITTEE VOTE
    1-7                          Yea     Nay      PNV      Absent 
    1-8        Whitmire           x                               
    1-9        Brown              x                               
   1-10        Nelson             x                               
   1-11        Sibley                                         x   
   1-12        Sims               x                               
   1-13        Turner             x                               
   1-14        West               x                               
   1-15                         A BILL TO BE ENTITLED
   1-16                                AN ACT
   1-17  relating to sentencing procedures in capital felony cases for
   1-18  offenses committed before September 1, 1991, and to the reformation
   1-19  of a sentence or an award of a new trial in a capital felony case.
   1-20        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-21        SECTION 1.  Section 2, Article 37.071, Code of Criminal
   1-22  Procedure, is amended by adding Subsection (i) to read as follows:
   1-23        (i)  This article applies to the sentencing procedure in a
   1-24  capital case for an offense that is committed on or after September
   1-25  1, 1991.  For the purposes of this section, an offense is committed
   1-26  on or after September 1, 1991, if any element of that offense
   1-27  occurs on or after that date.
   1-28        SECTION 2.  Chapter 37, Code of Criminal Procedure, is
   1-29  amended by adding Article 37.0711 to read as follows:
   1-30        Art. 37.0711.  PROCEDURE IN CAPITAL CASE FOR OFFENSE
   1-31  COMMITTED BEFORE SEPTEMBER 1, 1991
   1-32        Sec. 1.  This article applies to the sentencing procedure in
   1-33  a capital case for an offense that is committed before September 1,
   1-34  1991, whether the sentencing procedure is part of the original
   1-35  trial of the offense, an award of a new trial for both the guilt or
   1-36  innocence stage and the punishment stage of the trial, or an award
   1-37  of a new trial only for the punishment stage of the trial.  For the
   1-38  purposes of this section, an offense is committed before September
   1-39  1, 1991, if every element of the offense occurs before that date.
   1-40        Sec. 2.  If a defendant is found guilty in a case in which
   1-41  the state does not seek the death penalty, the judge shall sentence
   1-42  the defendant to life imprisonment.
   1-43        Sec. 3.  (a)  If a defendant is tried for a capital offense
   1-44  in which the state seeks the death penalty, on a finding that the
   1-45  defendant is guilty of a capital offense, the court shall conduct a
   1-46  separate sentencing proceeding to determine whether the defendant
   1-47  shall be sentenced to death or life imprisonment.  The proceeding
   1-48  shall be conducted in the trial court and, except as provided by
   1-49  Article 44.29(c) of this code, before the trial jury as soon as
   1-50  practicable.  In the proceeding, evidence may be presented as to
   1-51  any matter that the court deems relevant to sentence.  This
   1-52  subsection shall not be construed to authorize the introduction of
   1-53  any evidence secured in violation of the Constitution of the United
   1-54  States or of this state.  The state and the defendant or the
   1-55  defendant's counsel shall be permitted to present argument for or
   1-56  against sentence of death.
   1-57        (b)  On conclusion of the presentation of the evidence, the
   1-58  court shall submit the following three issues to the jury:
   1-59              (1)  whether the conduct of the defendant that caused
   1-60  the death of the deceased was committed deliberately and with the
   1-61  reasonable expectation that the death of the deceased or another
   1-62  would result;
   1-63              (2)  whether there is a probability that the defendant
   1-64  would commit criminal acts of violence that would constitute a
   1-65  continuing threat to society; and
   1-66              (3)  if raised by the evidence, whether the conduct of
   1-67  the defendant in killing the deceased was unreasonable in response
   1-68  to the provocation, if any, by the deceased.
    2-1        (c)  The state must prove each issue submitted under
    2-2  Subsection (b) of this section beyond a reasonable doubt, and the
    2-3  jury shall return a special verdict of "yes" or "no" on each issue
    2-4  submitted.
    2-5        (d)  The court shall charge the jury that:
    2-6              (1)  it may not answer any issue submitted under
    2-7  Subsection (b) of this section "yes" unless it agrees unanimously;
    2-8  and
    2-9              (2)  it may not answer any issue submitted under
   2-10  Subsection (b) of this section "no" unless 10 or more jurors agree.
   2-11        (e)  The court shall instruct the jury that if the jury
   2-12  returns an affirmative finding on each issue submitted under
   2-13  Subsection (b) of this section, it shall answer the following
   2-14  issue:
   2-15        Whether, taking into consideration all of the evidence,
   2-16  including the circumstances of the offense, the defendant's
   2-17  character and background, and the personal moral culpability of the
   2-18  defendant, there is a sufficient mitigating circumstance or
   2-19  circumstances to warrant that a sentence of life imprisonment
   2-20  rather than a death sentence be imposed.
   2-21        (f)  The court shall charge the jury that, in answering the
   2-22  issue submitted under Subsection (e) of this section, the jury:
   2-23              (1)  shall answer the issue "yes" or "no";
   2-24              (2)  may not answer the issue "no" unless it agrees
   2-25  unanimously and may not answer the issue "yes" unless 10 or more
   2-26  jurors agree; and
   2-27              (3)  shall consider mitigating evidence that a juror
   2-28  might regard as reducing the defendant's moral blameworthiness.
   2-29        (g)  If the jury returns an affirmative finding on each issue
   2-30  submitted under Subsection (b) of this section and a negative
   2-31  finding on the issue submitted under Subsection (e) of this
   2-32  section, the court shall sentence the defendant to death.  If the
   2-33  jury returns a negative finding on any issue submitted under
   2-34  Subsection (b) of this section or an affirmative finding on the
   2-35  issue submitted under Subsection (e) of this section or is unable
   2-36  to answer any issue submitted under Subsection (b) or (e) of this
   2-37  section, the court shall sentence the defendant to confinement in
   2-38  the institutional division of the Texas Department of Criminal
   2-39  Justice for life.
   2-40        (h)  If a defendant is convicted of an offense under Section
   2-41  19.03(a)(6), Penal Code, the court shall submit the issues under
   2-42  Subsections (b) and (e) of this section only with regard to the
   2-43  conduct of the defendant in murdering the deceased individual first
   2-44  named in the indictment.
   2-45        (i)  The court, the attorney for the state, or the attorney
   2-46  for the defendant may not inform a juror or prospective juror of
   2-47  the effect of failure of the jury to agree on an issue submitted
   2-48  under this article.
   2-49        (j)  The Court of Criminal Appeals shall automatically review
   2-50  a judgment of conviction and sentence of death not later than the
   2-51  60th day after the date of certification by the sentencing court of
   2-52  the entire record, unless the Court of Criminal Appeals extends the
   2-53  time for an additional period not to exceed 30 days for good cause
   2-54  shown.  Automatic review under this subsection has priority over
   2-55  all other cases before the Court of Criminal Appeals, and the court
   2-56  shall hear automatic reviews under rules adopted by the court for
   2-57  that purpose.
   2-58        SECTION 3.  Article 44.251(a), Code of Criminal Procedure, is
   2-59  amended to read as follows:
   2-60        (a)  The court of criminal appeals shall reform a sentence of
   2-61  death to a sentence of confinement in the institutional division of
   2-62  the Texas Department of Criminal Justice for life if the court
   2-63  finds that there is insufficient evidence to support an affirmative
   2-64  answer to an issue submitted to the jury under Section 2(b),
   2-65  Article 37.071, or Section 3(b), Article 37.0711, <(b)> of this
   2-66  code or a negative answer to an issue submitted to a jury under
   2-67  Section 2(e), Article 37.071, or Section 3(e), Article 37.0711,
   2-68  <(e)> of this code.
   2-69        SECTION 4.  Article 44.29(c), Code of Criminal Procedure, is
   2-70  amended to read as follows:
    3-1        (c)  If any court sets aside or invalidates the sentence of a
    3-2  defendant convicted of an offense under Section 19.03, Penal Code,
    3-3  and sentenced to death on the basis of any error affecting
    3-4  punishment only, the court shall not set the conviction aside but
    3-5  rather shall commence a new punishment hearing under Article 37.071
    3-6  or Article 37.0711 of this code, as appropriate, as if a finding of
    3-7  guilt had been returned.  The court shall empanel a jury for the
    3-8  sentencing stage of the trial in the same manner as a jury is to be
    3-9  empaneled by the court in other trials before the court for
   3-10  offenses under Section 19.03, Penal Code.  At the new punishment
   3-11  hearing, the court shall permit both the state and the defendant to
   3-12  introduce evidence as permitted by Article 37.071 or Article
   3-13  37.0711 of this code.
   3-14        SECTION 5.  Notwithstanding Section 5, Chapter 838, Acts of
   3-15  the 72nd Legislature, Regular Session, 1991, the changes in law
   3-16  made by Section 2 of Chapter 838 to Subsections (b) and (c) of
   3-17  Article 44.29, Code of Criminal Procedure, and by Section 3 of
   3-18  Chapter 838 to Article 44.251, Code of Criminal Procedure, apply to
   3-19  an offense whether the offense is committed before, on, or after
   3-20  September 1, 1991.
   3-21        SECTION 6.  The change in law made by this Act applies to an
   3-22  offense whether committed before, on, or after the effective date
   3-23  of this Act.
   3-24        SECTION 7.  The importance of this legislation and the
   3-25  crowded condition of the calendars in both houses create an
   3-26  emergency and an imperative public necessity that the
   3-27  constitutional rule requiring bills to be read on three several
   3-28  days in each house be suspended, and this rule is hereby suspended,
   3-29  and that this Act take effect and be in force from and after its
   3-30  passage, and it is so enacted.
   3-31                               * * * * *
   3-32                                                         Austin,
   3-33  Texas
   3-34                                                         May 25, 1993
   3-35  Hon. Bob Bullock
   3-36  President of the Senate
   3-37  Sir:
   3-38  We, your Committee on Criminal Justice to which was referred H.B.
   3-39  No. 798, have had the same under consideration, and I am instructed
   3-40  to report it back to the Senate with the recommendation that it do
   3-41  pass and be printed.
   3-42                                                         Whitmire,
   3-43  Chairman
   3-44                               * * * * *
   3-45                               WITNESSES
   3-46                                                  FOR   AGAINST  ON
   3-47  ___________________________________________________________________
   3-48  Name:  Peggy Griffey                                           x
   3-49  Representing:  Office of the Attorney Gen.
   3-50  City:  Austin
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