By: Armbrister S.B. No. 1738
97S0710/2
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the assessment of punishment in criminal proceedings.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Subsection (b), Section 2, Article 37.07, Code of
1-4 Criminal Procedure, is amended to read as follows:
1-5 (b) Except as provided in Article 37.071, if a finding of
1-6 guilty is returned, it shall then be the responsibility of the
1-7 judge to assess the punishment applicable to the offense; provided,
1-8 however, that (1) in any criminal action where the jury may
1-9 recommend probation and the defendant filed his sworn motion for
1-10 probation before the trial began, and (2) in other cases where the
1-11 defendant or the state so elects in writing before the commencement
1-12 of the voir dire examination of the jury panel, the punishment
1-13 shall be assessed by the same jury, except as provided in Section
1-14 3(c) and in Article 44.29. If a finding of guilty is returned, the
1-15 defendant or the state may, with the consent of the attorney for
1-16 the opposing party [state], change the defendant's or the state's
1-17 [his] election of one who assesses the punishment.
1-18 SECTION 2. Subsection (c), Section 3, Article 37.07, Code of
1-19 Criminal Procedure, is amended to read as follows:
1-20 (c) In cases where the matter of punishment is referred to
1-21 the jury, a [the] verdict of guilty shall not be set aside as a
1-22 result of the jury's failure to agree on [complete until the jury
1-23 has rendered a verdict both on the guilt or innocence of the
2-1 defendant and] the amount of punishment[, where the jury finds the
2-2 defendant guilty]. In the event the jury should [shall] fail to
2-3 agree as to punishment, the court shall order a new trial for the
2-4 punishment stage of the trial as provided by this article [a
2-5 mistrial shall be declared, the jury shall be discharged, and no
2-6 jeopardy shall attach].
2-7 SECTION 3. Subsection (b), Article 44.29, Code of Criminal
2-8 Procedure, is amended to read as follows:
2-9 (b) If the court of appeals or the Court of Criminal Appeals
2-10 awards a new trial to a defendant other than a defendant convicted
2-11 of an offense under Section 19.03, Penal Code, only on the basis of
2-12 an error or errors made in the punishment stage of the trial, the
2-13 cause shall stand as it would have stood in case the new trial had
2-14 been granted by the court below, except that the court shall
2-15 commence the new trial as if a finding of guilt had been returned
2-16 and proceed to the punishment stage of the trial under Subsection
2-17 (b), Section 2, Article 37.07, of this code. If the defendant or
2-18 the state elects, the court shall empanel a jury for the sentencing
2-19 stage of the trial in the same manner as a jury is empaneled by the
2-20 court for other trials before the court. At the new trial, the
2-21 court shall allow both the state and the defendant to introduce
2-22 evidence to show the circumstances of the offense and other
2-23 evidence as permitted by Section 3 of Article 37.07 of this code.
2-24 SECTION 4. (a) The change in law made by this Act applies
2-25 only to a trial for an offense committed on or after the effective
3-1 date of this Act. For purposes of this section, an offense is
3-2 committed before the effective date of this Act if any element of
3-3 the offense occurs before the effective date.
3-4 (b) A trial for an offense committed before the effective
3-5 date of this Act is governed by the law in effect when the offense
3-6 was committed, and the former law is continued in effect for that
3-7 purpose.
3-8 SECTION 5. This Act takes effect September 1, 1997.
3-9 SECTION 6. The importance of this legislation and the
3-10 crowded condition of the calendars in both houses create an
3-11 emergency and an imperative public necessity that the
3-12 constitutional rule requiring bills to be read on three several
3-13 days in each house be suspended, and this rule is hereby suspended.