By:  Patterson, J.                                    S.B. No. 1480
       73R9557 NSC-F
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the punishment for murder, aggravated sexual assault,
    1-3  and offenses involving controlled substances and to the eligibility
    1-4  for release on parole of prisoners serving sentences for those
    1-5  offenses.
    1-6        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-7        SECTION 1.  Section 19.02(b), Penal Code, is amended to read
    1-8  as follows:
    1-9        (b)  An offense under this section is punishable:
   1-10              (1)  by imprisonment in the institutional division of
   1-11  the Texas Department of Criminal Justice for life; or
   1-12              (2)  as a felony of the first degree.
   1-13        SECTION 2.  Section 22.021(e), Penal Code, is amended to read
   1-14  as follows:
   1-15        (e)  An offense under this section is punishable:
   1-16              (1)  by imprisonment in the institutional division of
   1-17  the Texas Department of Criminal Justice for life; or
   1-18              (2)  as a felony of the first degree.
   1-19        SECTION 3.  Subchapter D, Chapter 481, Health and Safety
   1-20  Code, is amended by adding Section 481.1061 to read as follows:
   1-21        Sec. 481.1061.  LIFE IMPRISONMENT WITHOUT PAROLE.
   1-22  Notwithstanding a provision of this subchapter that establishes
   1-23  life imprisonment in the institutional division of the Texas
   1-24  Department of Criminal Justice as the maximum term of imprisonment
    2-1  for an offense, on conviction the offense is punishable:
    2-2              (1)  in the manner provided by the section of this code
    2-3  otherwise providing punishment for the offense; or
    2-4              (2)  by imprisonment in the institutional division for
    2-5  life without parole.
    2-6        SECTION 4.  Chapter 37, Code of Criminal Procedure, is
    2-7  amended by adding Article 37.074 to read as follows:
    2-8        Art. 37.074.  PROCEDURE IN MURDER, AGGRAVATED SEXUAL ASSAULT,
    2-9  OR DRUG CASE
   2-10        Sec. 1.  If a defendant is found guilty of an offense under
   2-11  Section 19.02 or 22.021, Penal Code, or Chapter 481, Health and
   2-12  Safety Code, punishable by confinement in the institutional
   2-13  division of the Texas Department of Criminal Justice for life,  the
   2-14  judge shall sentence the defendant to any punishment permissible on
   2-15  conviction of the offense or to life imprisonment without parole,
   2-16  after making the determination otherwise made by the jury under
   2-17  Section 2(b) of this article.
   2-18        Sec. 2.  (a)  If a defendant is convicted of an offense under
   2-19  Section 19.02 or 22.021, Penal Code, or Chapter 481, Health and
   2-20  Safety Code, punishable by confinement in the institutional
   2-21  division of the Texas Department of Criminal Justice for life, the
   2-22  court shall conduct a separate sentencing proceeding to determine
   2-23  whether the defendant shall be sentenced to punishment otherwise
   2-24  permissible on conviction of the offense or to life imprisonment
   2-25  without parole.  The proceeding shall be conducted in the trial
   2-26  court before the trial jury as soon as practicable.  In the
   2-27  proceeding, evidence may be presented by the state and the
    3-1  defendant or the defendant's counsel as to any matter that the
    3-2  court deems relevant to sentence, including evidence of the
    3-3  defendant's background or character or the circumstances of the
    3-4  offense that mitigates against the imposition of life imprisonment
    3-5  without parole.  This subsection shall not be construed to
    3-6  authorize the introduction of any evidence secured in violation of
    3-7  the Constitution of the United States or of the State of Texas.
    3-8  The state and the defendant or the defendant's counsel shall be
    3-9  permitted to present argument for or against sentence of life
   3-10  imprisonment without parole.  The court, the attorney representing
   3-11  the state, the defendant, or the defendant's counsel may not inform
   3-12  a juror or a prospective juror of the effect of a failure of a jury
   3-13  to agree on issues submitted under Subsection (b) of this section.
   3-14        (b)  On conclusion of the presentation of the evidence, the
   3-15  court shall submit the following issue to the jury:
   3-16        Whether, taking into consideration all of the evidence,
   3-17  including the circumstances of the offense, the defendant's
   3-18  character and background, and the personal moral culpability of the
   3-19  defendant, there is a sufficient mitigating circumstance or
   3-20  circumstances to warrant that a sentence of life imprisonment
   3-21  rather than life imprisonment without parole be imposed.
   3-22        (c)  The court shall charge the jury that in answering the
   3-23  issue submitted under Subsection (b) of this section, the jury:
   3-24              (1)  shall answer the issue "yes" or "no";
   3-25              (2)  may not answer the issue "no" unless it agrees
   3-26  unanimously and may not answer the issue "yes" unless 10 or more
   3-27  jurors agree;
    4-1              (3)  need not agree on what particular evidence
    4-2  supports an affirmative finding on the issue; and
    4-3              (4)  shall consider mitigating evidence to be evidence
    4-4  that a juror might regard as reducing the defendant's moral
    4-5  blameworthiness.
    4-6        (d)  If the jury returns a negative finding on the issue
    4-7  submitted under Subsection (b) of this section, the court shall
    4-8  sentence the defendant to imprisonment in the institutional
    4-9  division of the Texas Department of Criminal Justice for life
   4-10  without parole.  If the jury returns an affirmative finding on the
   4-11  issue submitted under Subsection (b) of this section, the court
   4-12  shall order the jury to recommend any punishment otherwise
   4-13  permissible on conviction of the offense, and the court shall
   4-14  sentence the defendant to the punishment recommended by the jury.
   4-15        SECTION 5.  Sections 8(b)(2) and (b)(3), Article 42.18, Code
   4-16  of Criminal Procedure, are amended to read as follows:
   4-17              (2)  A <If a> prisoner <is> serving a life sentence for
   4-18  a capital felony or a sentence of life without parole for an
   4-19  offense under Section 19.02 or 22.021, Penal Code, or Chapter 481,
   4-20  Health and Safety Code, <the prisoner> is not eligible for <release
   4-21  on> parole <until the actual calendar time the prisoner has served,
   4-22  without consideration of good conduct time, equals 35 calendar
   4-23  years>.
   4-24              (3)  If a prisoner is serving a sentence for the
   4-25  offenses listed in Subdivision (1)(B), (C), or (D) of Section
   4-26  3g(a), Article 42.12 of this code, or if the judgment contains an
   4-27  affirmative finding under Subdivision (2) of Subsection (a) of
    5-1  Section 3g of that article, he is not eligible for release on
    5-2  parole until his actual calendar time served, without consideration
    5-3  of good conduct time, equals one-fourth of the maximum sentence or
    5-4  15 calendar years, whichever is less, but in no event shall he be
    5-5  eligible for release on parole in less than two calendar years.
    5-6  This subdivision does not apply to a defendant serving a sentence
    5-7  of life without parole for an offense under Section 22.021, Penal
    5-8  Code.
    5-9        SECTION 6.  The changes in law made by this Act apply only to
   5-10  a defendant convicted of an offense committed on or after the
   5-11  effective date of this Act.  For the purposes of this section, an
   5-12  offense is committed before the effective date of this Act if any
   5-13  element of the offense occurs before the effective date.  A
   5-14  defendant convicted of an offense committed before the effective
   5-15  date of this Act is covered by the law in effect when the offense
   5-16  was committed, and the former law is continued in effect for this
   5-17  purpose.
   5-18        SECTION 7.  This Act takes effect September 1, 1993.
   5-19        SECTION 8.  The importance of this legislation and the
   5-20  crowded condition of the calendars in both houses create an
   5-21  emergency and an imperative public necessity that the
   5-22  constitutional rule requiring bills to be read on three several
   5-23  days in each house be suspended, and this rule is hereby suspended.