SRC-BWC C.S.S.B. 85 77(R)    BILL ANALYSIS


Senate Research CenterC.S.S.B. 85
77R12750 GWK-DBy: Lucio
Criminal Justice
4-20-2001
Committee Report (Substituted)


DIGEST AND PURPOSE 

Currently, Texas law allows juries in capital felony cases the option of
deciding between the death penalty and a sentence of life which would allow
a felon to be eligible for  parole in no less than forty years.  In
situations where the death penalty is not sought, the defendant is
automatically sentenced to a life sentence, with the possibility of parole,
upon determination of guilt.  C.S.S.B. 85 adds life without parole to the
available sentencing options for capital felons in cases where the death
penalty is sought by the prosecution. This provides an alternative option
for juries when deciding on a capital felony case. 

RULEMAKING AUTHORITY

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

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 12.31, Penal Code, by requiring an individual
adjudged guilty of a capital felony in a case in which the state seeks the
death penalty to be punished by imprisonment in the institutional division
for life, for life without parole, or by death.  Makes conforming changes. 

SECTION 2.  Makes a conforming change.

SECTION 3.  Makes a conforming change.

SECTION 4.  Amends Section 1, Article 37.071, Code of Criminal Procedure,
to require the court to conduct a separate sentencing proceeding to
determine whether a defendant is required to be sentenced to life
imprisonment or life imprisonment without parole, in a capital case in
which the state does not seek the death penalty, on a finding at trial that
the defendant is guilty of a capital offense, or on a plea of guilty or
nolo contendere by the defendant.  Requires the proceeding to be conducted
in the trial court and before the trial jury as soon as practicable, except
that the court is required to empanel a new jury if required by Article
44.29(c) or if the defendant has entered a plea of guilty or nolo
contendere and requested that a jury assess punishment.  Authorizes the
defendant, with the consent of the attorney representing the state, to
change the defendant's election of who assesses punishment, after a finding
of guilty is returned or after the defendant enters a plea of guilty or
nolo contendere.  Authorizes evidence in the proceeding to be presented by
the state and the defendant or the defendant's counsel as to any matter
that the court considers relevant to sentence, in the same manner as if the
defendant were being sentenced in a noncapital case.  Prohibits this
section from being construed to authorize the introduction of any evidence
secured in violation of the Constitution of the United States or of the
State of Texas. 

Requires the court, at the proceeding under this section, to instruct the
jury that, after taking into account all the evidence described by this
section, the jury is required to assess as punishment on the defendant a
sentence of life imprisonment in the institutional division of the Texas
Department of Criminal Justice (department) or a sentence of imprisonment
in the institutional division for life without parole.  Requires the court
to further charge the jury that a defendant sentenced to imprisonment for
life without parole under this section is ineligible for release from the
institutional division on parole or mandatory supervision and that a
defendant sentenced to imprisonment for life is ineligible for release from
the institutional division on  mandatory supervision and is ineligible for
release from the institutional division on parole until the defendant's
actual calendar time served, without consideration of good conduct time,
equals 40 years.   

Requires the court, if the jury assesses punishment as life imprisonment or
is unable to assess punishment, to sentence the defendant to life
imprisonment in the institutional division of the department.  Requires the
court, if the jury assesses punishment as imprisonment for life without
parole, to sentence the defendant to imprisonment in the institutional
division of the department for life without parole.  Deletes text that
required a judge to sentenced a defendant to life imprisonment under
certain circumstances. 

SECTION 5.  Amends Section 2(e), Article 37.071, Code of Criminal
Procedure, to require the judge to instruct the jury that:  if the jury
returns an affirmative finding on issues submitted under this section, the
judge is required sentence the defendant to death; if the jury returns an
affirmative finding on certain issues submitted under this section, the
judge is required to sentence the defendant to life imprisonment without
parole; and if the jury returns a negative finding on an issue submitted
under this section, the judge is required to sentence the defendant to life
imprisonment.  Requires the judge, after instructing the jury under this
section, to further charge the jury that a defendant sentenced to
imprisonment for life without parole under this article is ineligible for
release from the institutional division on parole or mandatory supervision
and that a defendant sentenced to imprisonment for life under this article
is ineligible for release from the institutional division on mandatory
supervision and is ineligible for release from the institutional division
on parole until the defendant's actual calendar time served, without
consideration of good conduct time, equals 40 years.  Deletes text
regarding the sentencing of defendants and the application of  parole.
Makes a conforming change.   

SECTION 6.  Amends Section 2(g), Article 37.071, Code of Criminal
Procedure, to require a judge to sentence the defendant to imprisonment in
the institutional division of the department for life without parole, if
the jury returns an affirmative finding on certain issues submitted under
this section or is unable to answer an issue submitted under this section.
Makes conforming and nonsubstantive changes.   

SECTION 7.  Amends Article 44.29(c), Code of Criminal Procedure, to require
the court not to set a conviction aside but rather to commence a new
punishment hearing under Article 37.071 or Article 37.0711 of this code, as
appropriate, as if a finding of guilt had been returned, if any court sets
aside or invalidates the sentence of a defendant convicted of an offense
under Section 19.03 (Capital Murder), Penal Code, rather than Section 19.03
and sentenced to death, on the basis of any error affecting punishment
only. 

SECTION 8.  Makes application of this Act prospective.

SECTION 9.  Effective date:  September 1, 2001. 



SUMMARY OF COMMITTEE CHANGES

SECTIONS 1 - 3.  No change.

SECTION 4.  Deletes proposed text and adds new text regarding the
sentencing of a defendant to life imprisonment or life imprisonment without
parole.   

SECTION 5.  Differs from As Filed version by adding new text to clarify the
sentencing of a defendant. 

SECTION 6.  Differs from As Filed version by adding new text regarding the
sentencing of a defendant to life without parole under certain
circumstances. 

SECTION 7.  Differs from As Filed version by deleting the phrase "sentenced
to death." 

 SECTION 8.  Renumbers proposed SECTION 7 as SECTION 8.

SECTION 9.  Renumbers proposed SECTION 8 as SECTION 9.