SRC-CDH S.B. 1738 75(R)   BILL ANALYSIS


Senate Research Center   S.B. 1738
By: Armbrister
Criminal Justice
4-16-97
As Filed


DIGEST 

Currently, under Article 44.29 of the Code of Criminal Procedure, a
defendant has the right to request a jury trial at the punishment phase of
a criminal case, but the state has no commensurate right.  Under Article
37.07 of the same code, if a case is reversed on appeal for error
committed at the punishment phase, the case is only remanded for a new
trial on punishment and not on guilt or innocence; however, if a jury
convicts a defendant and is unable to reach a decision at the punishment
phase, the case is retried both as to guilt or innocence and punishment.
Concern has been raised regarding the inconsistencies of these statutes
regarding criminal proceedings.  S.B. 1738 addresses these problems by
affording the State of Texas the right to go to jury at the punishment
phase of a criminal case, and by requiring a court, if a jury finds a
defendant guilty but is unable to reach a decision on punishment, to order
the case retried as to punishment.       

PURPOSE

As proposed, S.B. 1738 provides for the assessment of punishment in
criminal proceedings. 

RULEMAKING AUTHORITY

This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 2(b), Article 37.07, Code of Criminal Procedure,
to provide that if a finding of guilty is returned, it shall be the
responsibility of the judge to assess the punishment applicable, provided
that in cases where the defendant or the state so elects in writing, the
punishment shall be assessed by the same jury, except as provided in
Section 3(c) and in Article 44.29.  Authorizes the defendant or the state,
if a guilty finding is returned, with the consent of the attorney for the
opposing party, rather than the state, to change the defendant's or the
state's election of one who assesses the punishment.   

SECTION 2. Amends Section 3(c), Article 37.07, Code of Criminal Procedure,
to prohibit a guilty verdict, in cases where the matter of punishment is
referred to the jury, from being set aside as a result of the jury's
failure to agree on the amount of punishment.  Deletes the prohibition
barring the verdict from being complete until the jury has rendered a
verdict both on the guilt or innocence of the defendant and the amount of
punishment, where the jury finds the defendant guilty.  Requires the
court, in the event the jury should fail to agree as to punishment, to
order a new trial for the punishment stage of the trial.  Deletes the
provisions establishing that in the event the jury shall fail to agree, a
mistrial shall be declared, the jury discharged, and no jeopardy shall
attach. 

SECTION 3. Amends Article 44.29(b), Code of Criminal Procedure, to require
a court, if the defendant or the state elects, to empanel a jury for the
sentencing stage of the trial in the same manner as a jury is empaneled by
the court for other trials before the court. 

SECTION 4. Makes application of this Act prospective.  

SECTION 5. Effective date:  September 1, 1997.

SECTION 6. Emergency clause.