By: Whitmire S.B. No. 1190
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the eligibility for parole of a defendant convicted of
1-2 a capital offense.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 12.31, Penal Code, is amended to read as
1-5 follows:
1-6 Sec. 12.31. Capital Felony. (a) An individual adjudged
1-7 guilty of a capital felony in a case in which the state seeks the
1-8 death penalty shall be punished by imprisonment <confinement> in
1-9 the institutional division of the Texas Department of Criminal
1-10 Justice for life or life without parole or by death. An individual
1-11 adjudged guilty of a capital felony in a case in which the state
1-12 does not seek the death penalty shall be punished by imprisonment
1-13 <confinement> in the institutional division for life or life
1-14 without parole.
1-15 (b) In a capital felony trial in which the state seeks the
1-16 death penalty, prospective jurors shall be informed that a sentence
1-17 of life imprisonment, life imprisonment without parole, or death
1-18 is mandatory on conviction of a capital felony. In a capital
1-19 felony trial in which the state does not seek the death penalty,
1-20 prospective jurors shall be informed that the state is not seeking
1-21 the death penalty and that a sentence of life imprisonment or life
1-22 imprisonment without parole is mandatory on conviction of the
1-23 capital felony.
2-1 SECTION 2. Article 37.071, Code of Criminal Procedure, is
2-2 amended to read as follows:
2-3 Art. 37.071. Procedure in capital case.
2-4 Sec. 1. If a defendant is found guilty in a capital felony
2-5 case in which the state does not seek the death penalty, the judge
2-6 shall sentence the defendant to life imprisonment or life
2-7 imprisonment without parole, after making the determination
2-8 otherwise made by the jury under Section 2(f) of this article.
2-9 Sec. 2. (a) If a defendant is tried for a capital offense
2-10 in which the state seeks the death penalty, on a finding that the
2-11 defendant is guilty of a capital offense, the court shall conduct a
2-12 separate sentencing proceeding to determine whether the defendant
2-13 shall be sentenced to death, <or> life imprisonment, or life
2-14 imprisonment without parole. The proceeding shall be conducted in
2-15 the trial court and except as provided by Article 44.29(c) of this
2-16 code, before the trial jury as soon as practicable. In the
2-17 proceeding, evidence may be presented by the state and the
2-18 defendant or the defendant's counsel as to any matter that the
2-19 court deems relevant to sentence, including evidence of the
2-20 defendant's background or character or the circumstances of the
2-21 offense that mitigates against the imposition of the death penalty.
2-22 This subsection shall not be construed to authorize the
2-23 introduction of any evidence secured in violation of the
2-24 Constitution of the United States or of the State of Texas. The
2-25 state and the defendant or the defendant's counsel shall be
3-1 permitted to present argument for or against sentence of death.
3-2 The court, the attorney representing the state, the defendant, or
3-3 the defendant's counsel may not inform a juror or a prospective
3-4 juror of the effect of a failure of a jury to agree on issues
3-5 submitted under Subsection (c) or (e) of this section <article>.
3-6 (b) On conclusion of the presentation of the evidence, the
3-7 court shall:
3-8 (1) charge the jury in writing as follows:
3-9 "Under the laws applicable in this case, the defendant, if
3-10 not sentenced to death but rather sentenced to life imprisonment,
3-11 may not earn time off the period of imprisonment though the award
3-12 of good conduct time, and the length of time for which the
3-13 defendant will be imprisoned may not be reduced by the award of
3-14 parole. Under the constitution of this state, it is possible that
3-15 the governor may, on the written signed recommendation and advice
3-16 of a majority of the Board of Pardons and Paroles, grant to the
3-17 defendant a reprieve, commutation of punishment, or pardon."; and
3-18 (2) submit the following issues to the jury:
3-19 (A) <(1)> whether there is a probability that
3-20 the defendant would commit criminal acts of violence that would
3-21 constitute a continuing threat to society; and
3-22 (B) <(2)> in cases in which the jury charge at
3-23 the guilt or innocence stage permitted the jury to find the
3-24 defendant guilty as a party under Sections 7.01 and 7.02, Penal
3-25 Code, whether the defendant actually caused the death of the
4-1 deceased or did not actually cause the death of the deceased but
4-2 intended to kill the deceased or another or anticipated that a
4-3 human life would be taken.
4-4 (c) The state must prove each issue submitted under
4-5 Subsection (b) of this section <article> beyond a reasonable doubt,
4-6 and the jury shall return a special verdict of "yes" or "no" on
4-7 each issue submitted under Subsection (b) of this section
4-8 <Article>.
4-9 (d) The court shall charge the jury that:
4-10 (1) in deliberating on the issues submitted under
4-11 Subsection (b) of this section <article>, it shall consider all
4-12 evidence admitted at the guilt or innocence stage and the
4-13 punishment stage, including evidence of the defendant's background
4-14 or character or the circumstances of the offense that militates for
4-15 or mitigates against the imposition of the death penalty;
4-16 (2) it may not answer any issue submitted under
4-17 Subsection (b) of this section <article> "yes" unless it agrees
4-18 unanimously and it may not answer any issue "no" unless 10 or more
4-19 jurors agree; and
4-20 (3) members of the jury need not agree on what
4-21 particular evidence supports a negative answer to any issue
4-22 submitted under Subsection (b) of this section <article>.
4-23 (e) The court shall instruct the jury that if the jury
4-24 returns an affirmative finding to each issue submitted under
4-25 Subsection (b) of this section <article>, it shall answer the
5-1 following issue:
5-2 Whether, taking into consideration all of the evidence,
5-3 including the circumstances of the offense, the defendant's
5-4 character and background, and the personal moral culpability of the
5-5 defendant, there is a sufficient mitigating circumstance or
5-6 circumstances to warrant that a sentence of life imprisonment or
5-7 life imprisonment without parole rather than a death sentence be
5-8 imposed.
5-9 (f) The court shall instruct the jury that if the jury
5-10 returns a negative finding on any issue submitted under Subsection
5-11 (b) of this section or an affirmative finding on an issue submitted
5-12 under Subsection (e) of this section or is unable to answer any
5-13 issue submitted under Subsection (b) or (e) of this section, it
5-14 shall answer the following issue:
5-15 Whether, taking into consideration all of the evidence,
5-16 including the circumstances of the offense, the defendant's
5-17 character and background, and the personal moral culpability of the
5-18 defendant, there is a sufficient mitigating circumstance or
5-19 circumstances to warrant that a sentence of life imprisonment
5-20 rather than life imprisonment without parole be imposed.
5-21 (g) The court shall charge the jury that in answering an
5-22 <the> issue submitted under Subsection (e) or Subsection (f) of
5-23 this section <article>, the jury:
5-24 (1) shall answer the issue "yes" or "no";
5-25 (2) may not answer the issue "no" unless it agrees
6-1 unanimously and may not answer the issue "yes" unless 10 or more
6-2 jurors agree;
6-3 (3) need not agree on what particular evidence
6-4 supports an affirmative finding on the issue; and
6-5 (4) shall consider mitigating evidence to be evidence
6-6 that a juror might regard as reducing the defendant's moral
6-7 blameworthiness.
6-8 (h) <(g)> If the jury returns an affirmative finding on each
6-9 issue submitted under Subsection (b) of this section <article> and
6-10 a negative finding on an issue submitted under Subsection (e) of
6-11 this section <article>, the court shall sentence the defendant to
6-12 death. If the jury returns a negative finding on an <any> issue
6-13 submitted under Subsection (f) <(b)> of this section <article or an
6-14 affirmative finding on an issue submitted under Subsection (e) of
6-15 this article or is unable to answer any issue submitted under
6-16 Subsection (b) or (e) of this article>, the court shall sentence
6-17 the defendant to imprisonment <confinement> in the institutional
6-18 division of the Texas Department of Criminal Justice for life
6-19 without parole. If the jury returns an affirmative finding on an
6-20 issue submitted under Subsection (f) of this section, the court
6-21 shall sentence the defendant to imprisonment in the institutional
6-22 division of the Texas Department of Criminal Justice for life.
6-23 (i) <(h)> The judgment of conviction and sentence of death
6-24 shall be subject to automatic review by the Court of Criminal
6-25 Appeals.
7-1 SECTION 3. Section 8 (b)(1), Article 42.18, Code of Criminal
7-2 Procedure, is amended to read as follows:
7-3 (1) A prisoner under sentence of death or sentence
7-4 of life imprisonment without parole is not eligible for parole.
7-5 SECTION 4. Subsections (a) and (b), Article 44.251, Code of
7-6 Criminal Procedure, are amended to read as follows: (a) The court
7-7 of criminal appeals shall reform a sentence of death to a sentence
7-8 of imprisonment <confinement> in the institutional division of the
7-9 Texas Department of Criminal Justice for life if the court finds
7-10 that there is insufficient evidence to support an affirmative
7-11 answer to an issue submitted to the jury under Article 37.071(b) of
7-12 this code or a negative answer to an issue submitted to a jury
7-13 under Article 37.071(e) of this code. The court of criminal
7-14 appeals shall reform a sentence of life imprisonment without parole
7-15 to a sentence of life imprisonment if the court finds that there is
7-16 insufficient evidence to support a negative answer to an issue
7-17 submitted to a jury under Article 37.071(f) of this code or a
7-18 negative determination by the trial court under Article 37.071(f).
7-19 (b) The court of criminal appeals shall reform a sentence of
7-20 death or a sentence of life imprisonment without parole to a
7-21 sentence of imprisonment <confinement> in the institutional
7-22 division of the Texas Department of Criminal Justice for life if:
7-23 (1) the court finds reversible error that affects the
7-24 punishment stage of the trial other than a finding of insufficient
7-25 evidence under Subsection (a) of this article; and
8-1 (2) within 30 days after the date on which the opinion
8-2 is handed down, the date the court disposes of a timely request for
8-3 rehearing, or the date that the United States Supreme Court
8-4 disposes of a timely filed petition for writ of certiorari,
8-5 whichever date is later, the prosecuting attorney files a motion
8-6 requesting that the sentence be reformed to confinement for life.
8-7 SECTION 5. Section 44.29(c), Code of Criminal Procedure, is
8-8 amended to read as follows:
8-9 (c) If any court sets aside or invalidates the sentence of a
8-10 defendant convicted of an offense under Section 19.03, Penal Code,
8-11 and sentenced to death or life imprisonment without parole on the
8-12 basis of any error affecting punishment only, the court shall not
8-13 set the conviction aside but rather shall commence a new punishment
8-14 hearing under Article 37.071 of this code as if a finding of guilt
8-15 had been returned. The court shall empanel a jury for the
8-16 sentencing stage of the trial in the same manner as a jury is to be
8-17 empaneled by the court in other trials before the court for
8-18 offenses under Section 19.03, Penal Code.
8-19 SECTION 6. (a) The change in law made by this Act applies
8-20 only to an offense committed on or after the effective date of this
8-21 Act. For purposes of this section, an offense is committed before
8-22 the effective date of this Act if any element of the offense occurs
8-23 before the effective date.
8-24 (b) An offense committed before the effective date of this
8-25 Act is covered by the law in effect when the offense was committed,
9-1 and the former law is continued in effect for this purpose.
9-2 SECTION 7. This Act takes effect September 1, 1993.
9-3 SECTION 8. The importance of this legislation and the
9-4 crowded condition of the calendars in both houses create an
9-5 emergency and an imperative public necessity that the
9-6 constitutional rule requiring bills to be read on three several
9-7 days in each house be suspended, and this rule is hereby suspended.