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.