By: Brown S.B. No. 107
73R2149 CLG-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the punishment and sentencing of a defendant who uses a
1-3 firearm during the commission of a felony or during immediate
1-4 flight after the commission of the felony.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subchapter D, Chapter 12, Penal Code, is amended
1-7 by adding Section 12.48 to read as follows:
1-8 Sec. 12.48. PENALTY IF FIREARM IS USED. (a) The term of
1-9 imprisonment otherwise prescribed for a felony is increased as
1-10 follows if it is shown on the trial of the offense that the
1-11 defendant used a firearm during the commission of the offense or
1-12 during immediate flight after the commission of the offense:
1-13 (1) to not more than 20 years or less than 12 years if
1-14 the underlying offense is a third degree felony;
1-15 (2) to not more than 30 years or less than 12 years if
1-16 the underlying offense is a second degree felony; or
1-17 (3) to life or to not more than 99 years or less than
1-18 15 years if the underlying offense is a first degree felony.
1-19 (b) This section does not apply to an offense under Section
1-20 19.03 or Chapter 46 of this code.
1-21 (c) In this section, "firearm" has the meaning assigned by
1-22 Section 46.01 of this code.
1-23 SECTION 2. Section 3g, Article 42.12, Code of Criminal
1-24 Procedure, is amended to read as follows:
2-1 Sec. 3g. <(a)> The provisions of Section 3 of this article
2-2 do not apply:
2-3 (1) to a defendant adjudged guilty of an offense
2-4 defined by the following sections of the Penal Code:
2-5 (A) Section 19.03 (Capital murder);
2-6 (B) Section 20.04 (Aggravated kidnapping);
2-7 (C) Section 22.021 (Aggravated sexual assault);
2-8 (D) Section 29.03 (Aggravated robbery); or
2-9 (2) to a defendant when it is shown that a deadly
2-10 weapon as defined in Section 1.07(a)(11), Penal Code, was used or
2-11 exhibited during the commission of a felony offense or during
2-12 immediate flight therefrom, and that the defendant used or
2-13 exhibited the deadly weapon or was a party to the offense and knew
2-14 that a deadly weapon would be used or exhibited. On an affirmative
2-15 finding under this subdivision, the trial court shall enter the
2-16 finding in the judgment of the court. On an affirmative finding
2-17 that the deadly weapon was a firearm, the court shall enter that
2-18 finding in its judgment.
2-19 <(b) If there is an affirmative finding under Subsection
2-20 (a)(2) in the trial of a felony of the second degree or higher that
2-21 the deadly weapon used or exhibited was a firearm and the defendant
2-22 is granted probation, the court may order the defendant confined in
2-23 the institutional division of the Texas Department of Criminal
2-24 Justice for not less than 60 and not more than 120 days. At any
2-25 time after the defendant has served 60 days in the custody of the
2-26 institutional division, the sentencing judge, on his own motion or
2-27 on motion of the defendant, may order the defendant released to
3-1 probation. The institutional division shall release the defendant
3-2 to probation after he has served 120 days.>
3-3 SECTION 3. Section 4(a), Article 42.12, Code of Criminal
3-4 Procedure, is amended to read as follows:
3-5 (a) When there is a felony conviction in any court of this
3-6 State and the punishment assessed by the jury shall not exceed ten
3-7 years, the jury may recommend probation for a period of any term of
3-8 years authorized for the offense for which the defendant was
3-9 convicted, but in no event for more than ten years, upon written
3-10 sworn motion made therefor by the defendant, filed before the trial
3-11 begins. When the jury recommends probation, it may also assess a
3-12 fine applicable to the offense for which the defendant was
3-13 convicted. When the trial is to a jury, and the defendant has no
3-14 counsel, the court shall inform the defendant of his right to make
3-15 such motion, and the court shall appoint counsel to prepare and
3-16 present same, if desired by the defendant. In no case shall
3-17 probation be recommended by the jury except when the sworn motion
3-18 and proof shall show, and the jury shall find in their verdict that
3-19 the defendant has never before been convicted of a felony in this
3-20 or any other State. This law is not to be construed as preventing
3-21 the jury from passing on the guilt of the defendant, but he may
3-22 enter a plea of not guilty. In all eligible cases, probation shall
3-23 be granted by the court, if the jury recommends it in their
3-24 verdict, for the period recommended by the jury. This section does
3-25 not apply to a defendant:
3-26 (1) adjudged guilty of an offense under Section
3-27 481.122, Texas Controlled Substances Act (Chapter 481, Health and
4-1 Safety Code), if it is shown on the trial of the offense that the
4-2 defendant was 21 years of age or older at the time the offense was
4-3 committed by his own conduct; or
4-4 (2) convicted of an offense for which the punishment
4-5 is increased under Section 12.48, Penal Code.
4-6 SECTION 4. Section 5(d), Article 42.12, Code of Criminal
4-7 Procedure, is amended to read as follows:
4-8 (d) This section does not apply to a defendant charged with
4-9 an offense for which the attorney representing the state has
4-10 announced an intention to the court to increase the punishment
4-11 under Section 12.48, Penal Code, or to a defendant charged with an
4-12 offense under Subdivision (2), Subsection (a), Section 19.05, Penal
4-13 Code, an offense under Sections 481.107(b) through (e), 481.122, or
4-14 481.126, Health and Safety Code, an offense under Article 6701l-1,
4-15 Revised Statutes, an offense under Section 34, Chapter 173, Acts of
4-16 the 47th Legislature, Regular Session, 1941 (Article 6687b,
4-17 Vernon's Texas Civil Statutes), an offense under Section 32(c),
4-18 Texas Motor Vehicle Safety-Responsibility Act (Article 6701h,
4-19 Vernon's Texas Civil Statutes), or an offense under Section 10,
4-20 Texas Commercial Driver's License Act (Article 6687b-2, Revised
4-21 Statutes).
4-22 SECTION 5. Section 8(b), Article 42.18, Code of Criminal
4-23 Procedure, is amended to read as follows:
4-24 (b)(1) A prisoner under sentence of death is not eligible
4-25 for parole.
4-26 (2) If a prisoner is serving a life sentence for a
4-27 capital felony, the prisoner is not eligible for release on parole
5-1 until the actual calendar time the prisoner has served, without
5-2 consideration of good conduct time, equals 35 calendar years.
5-3 (3) If a prisoner is serving a sentence for the
5-4 offenses listed in Subdivision (1)(B), (C), or (D) of Section 3g
5-5 <3g(a)>, Article 42.12 of this code, or if the judgment contains an
5-6 affirmative finding under Subdivision (2) of <Subsection (a) of>
5-7 Section 3g of that article that the prisoner used or exhibited a
5-8 deadly weapon other than a firearm as defined by Section 46.01,
5-9 Penal Code, he is not eligible for release on parole until his
5-10 actual calendar time served, without consideration of good conduct
5-11 time, equals one-fourth of the maximum sentence or 15 calendar
5-12 years, whichever is less, but in no event shall he be eligible for
5-13 release on parole in less than two calendar years.
5-14 (4) If a prisoner is serving a sentence for which the
5-15 minimum term of punishment was increased under Section 12.48, Penal
5-16 Code, the prisoner is not eligible for release on parole until the
5-17 prisoner's actual calendar time served, without consideration of
5-18 good conduct time, equals one-fourth of the maximum sentence or 15
5-19 calendar years, whichever is less, but in no event is the prisoner
5-20 eligible for release on parole in less than 10 calendar years.
5-21 (5) <(4)> Except as provided by Subsection (m) of this
5-22 section, all other prisoners shall be eligible for release on
5-23 parole when their calendar time served plus good conduct time
5-24 equals one-fourth of the maximum sentence imposed or 15 years,
5-25 whichever is less.
5-26 SECTION 6. (a) The change in law made by this Act applies
5-27 only to a defendant placed on deferred adjudication for or
6-1 sentenced for an offense committed on or after the effective date
6-2 of this Act. For purposes of this section, an offense is committed
6-3 before the effective date of this Act if any element of the offense
6-4 occurs before the effective date.
6-5 (b) A defendant placed on deferred adjudication for or
6-6 sentenced for an offense committed before the effective date of
6-7 this Act is covered by the law in effect when the offense was
6-8 committed, and the former law is continued in effect for this
6-9 purpose.
6-10 SECTION 7. This Act takes effect September 1, 1993.
6-11 SECTION 8. The importance of this legislation and the
6-12 crowded condition of the calendars in both houses create an
6-13 emergency and an imperative public necessity that the
6-14 constitutional rule requiring bills to be read on three several
6-15 days in each house be suspended, and this rule is hereby suspended.