By McClendon                                            H.B. No. 30
         77R693 GWK-F                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the punishment for 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 in the
 1-9     institutional division for life, for life without parole, or by
1-10     death.  An individual adjudged guilty of a capital felony in a case
1-11     in which the state does not seek the death penalty shall be
1-12     punished by imprisonment in the institutional division for life or
1-13     for life without parole.
1-14           (b)  In a capital felony trial in which the state seeks the
1-15     death penalty, prospective jurors shall be informed that a sentence
1-16     of life imprisonment, life imprisonment without parole, or death is
1-17     mandatory on conviction of a capital felony.  In a capital felony
1-18     trial in which the state does not seek the death penalty,
1-19     prospective jurors shall be informed that the state is not seeking
1-20     the death penalty and that a sentence of life imprisonment or life
1-21     imprisonment without parole is mandatory on conviction of the
1-22     capital felony.
1-23           SECTION 2.   Section 508.046, Government Code, is amended to
1-24     read as follows:
 2-1           Sec. 508.046.  EXTRAORDINARY VOTE REQUIRED.  To release on
 2-2     parole an inmate who was convicted of a capital felony punishable
 2-3     by imprisonment for life or an offense under Section 21.11(a)(1) or
 2-4     22.021, Penal Code, or who is required under Section 508.145(c) to
 2-5     serve 35 calendar years before becoming eligible for release on
 2-6     parole, all members of the board must vote on the release on parole
 2-7     of the inmate, and at least two-thirds of the members must vote in
 2-8     favor of the release on parole.  A member of the board may not vote
 2-9     on the release unless the member first receives a copy of a written
2-10     report from the department on the probability that the inmate would
2-11     commit an offense after being released on parole.
2-12           SECTION 3.  Section 508.145(a), Government Code, is amended
2-13     to read as follows:
2-14           (a)  An inmate under sentence of death or serving a sentence
2-15     of life imprisonment without parole is not eligible for release on
2-16     parole.
2-17           SECTION 4.  Section 1, Article 37.071, Code of Criminal
2-18     Procedure, is amended to read as follows:
2-19           Sec. 1.  If a defendant is found guilty in a capital felony
2-20     case in which the state does not seek the death penalty, the judge
2-21     shall charge and instruct the jury as provided by Section 2(e)
2-22     [sentence the defendant to life imprisonment].
2-23           SECTION 5.  Section 2(e), Article 37.071, Code of Criminal
2-24     Procedure, is amended to read as follows:
2-25           (e)(1)  The court shall instruct the jury that if the jury
2-26     returns an affirmative finding to each issue submitted under
2-27     Subsection (b) of this article, it shall answer the following
 3-1     issue:
 3-2           Whether, taking into consideration all of the evidence,
 3-3     including the circumstances of the offense, the defendant's
 3-4     character and background, and the personal moral culpability of the
 3-5     defendant, there is a sufficient mitigating circumstance or
 3-6     circumstances to warrant that a sentence of life imprisonment or
 3-7     life imprisonment without parole rather than a death sentence be
 3-8     imposed.
 3-9                 (2)  The court shall instruct the jury that if the jury
3-10     returns a negative finding on an issue submitted under Subsection
3-11     (b), is unable to answer an issue under Subsection (b), or returns
3-12     an affirmative finding on the issue submitted under Subdivision
3-13     (1), the jury, taking into account all the evidence described by
3-14     Subdivision (1), shall also answer the issue as to whether the
3-15     defendant should be sentenced to life imprisonment rather than life
3-16     imprisonment without parole.  The court shall further charge the
3-17     jury that a defendant sentenced to confinement for life without
3-18     parole under this article is ineligible for release from the
3-19     department on parole or mandatory supervision and that a defendant
3-20     sentenced to confinement for life under this article is ineligible
3-21     for release from the department on mandatory supervision and is
3-22     ineligible for release on parole until the defendant's actual
3-23     calendar time served, without consideration of good conduct time,
3-24     equals 40 years.  [The court, on the written request of the
3-25     attorney representing the defendant, shall:]
3-26                       [(A)  instruct the jury that if the jury answers
3-27     that a circumstance or circumstances warrant that a sentence of
 4-1     life imprisonment rather than a death sentence be imposed, the
 4-2     court will sentence the defendant to imprisonment in the
 4-3     institutional division of the Texas Department of Criminal Justice
 4-4     for life; and]
 4-5                       [(B)  charge the jury in writing as follows:]
 4-6           ["Under the law applicable in this case, if the defendant is
 4-7     sentenced to imprisonment in the institutional division of the
 4-8     Texas Department of Criminal Justice for life, the defendant will
 4-9     become eligible for release on parole, but not until the actual
4-10     time served by the defendant equals 40 years, without consideration
4-11     of any good conduct time.  It cannot accurately be predicted how
4-12     the parole laws might be applied to this defendant if the defendant
4-13     is sentenced to a term of imprisonment for life because the
4-14     application of those laws will depend on decisions made by prison
4-15     and parole authorities, but eligibility for parole does not
4-16     guarantee that parole will be granted."]
4-17           SECTION 6.  Section 2(g), Article 37.071, Code of Criminal
4-18     Procedure, is amended to read as follows:
4-19           (g)  If the jury returns an affirmative finding on each issue
4-20     submitted under Subsection (b) [of this article] and a negative
4-21     finding on an issue submitted under Subsection (e)(1) [of this
4-22     article], the court shall sentence the defendant to death.  If the
4-23     jury returns a negative finding on any issue submitted under
4-24     Subsection (b) and [of this article or] an affirmative finding on
4-25     an issue submitted under Subsection (e)(2) [of this article] or is
4-26     unable to answer any issue submitted under Subsection (b) or (e)
4-27     [of this article], the court shall sentence the defendant to
 5-1     confinement in the institutional division of the Texas Department
 5-2     of Criminal Justice for life.  If the jury returns a negative
 5-3     finding under Subsection (e)(2), the court shall sentence the
 5-4     defendant to life imprisonment without parole.
 5-5           SECTION 7.  (a)  The change in law made by this Act applies
 5-6     only to an offense committed on or after the effective date of this
 5-7     Act.  For purposes of this section, an offense is committed before
 5-8     the effective date of this Act if any element of the offense occurs
 5-9     before the effective date.
5-10           (b)  An offense committed before the effective date of this
5-11     Act is covered by the law in effect when the offense was committed,
5-12     and the former law is continued in effect for that purpose.
5-13           SECTION 8.   This Act takes effect September 1, 2001.