77R6126 GWK-D
By Hinojosa, McClendon H.B. No. 365
Substitute the following for H.B. No. 365:
By Dunnam C.S.H.B. No. 365
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 judge [court] shall instruct the jury that if the
2-26 jury 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 judge shall instruct the jury that:
3-10 (A) if the jury returns an affirmative finding
3-11 on each issue submitted under Subsection (b) and a negative finding
3-12 on an issue submitted under Subdivision (1), the judge shall
3-13 sentence the defendant to death;
3-14 (B) if the jury returns an affirmative finding
3-15 on each issue submitted under Subsection (b) and either returns an
3-16 affirmative finding on an issue submitted under Subdivision (1) or
3-17 is unable to answer an issue submitted under Subdivision (1), the
3-18 judge shall sentence the defendant to life imprisonment without
3-19 parole; and
3-20 (C) if the jury returns a negative finding on an
3-21 issue submitted under Subsection (b) or is unable to answer an
3-22 issue under Subsection (b), the judge shall sentence the defendant
3-23 to life imprisonment.
3-24 (3) The judge, after instructing the jury under
3-25 Subdivision (2), shall further charge the jury that a defendant
3-26 sentenced to imprisonment for life without parole under this
3-27 article is ineligible for release from the department on parole or
4-1 mandatory supervision and that a defendant sentenced to
4-2 imprisonment for life under this article is ineligible for release
4-3 from the department on mandatory supervision and is ineligible for
4-4 release on parole until the defendant's actual calendar time
4-5 served, without consideration of good conduct time, equals 40
4-6 years. [The court, on the written request of the attorney
4-7 representing the defendant, shall:]
4-8 [(A) instruct the jury that if the jury answers
4-9 that a circumstance or circumstances warrant that a sentence of
4-10 life imprisonment rather than a death sentence be imposed, the
4-11 court will sentence the defendant to imprisonment in the
4-12 institutional division of the Texas Department of Criminal Justice
4-13 for life; and]
4-14 [(B) charge the jury in writing as follows:]
4-15 ["Under the law applicable in this case, if the defendant is
4-16 sentenced to imprisonment in the institutional division of the
4-17 Texas Department of Criminal Justice for life, the defendant will
4-18 become eligible for release on parole, but not until the actual
4-19 time served by the defendant equals 40 years, without consideration
4-20 of any good conduct time. It cannot accurately be predicted how
4-21 the parole laws might be applied to this defendant if the defendant
4-22 is sentenced to a term of imprisonment for life because the
4-23 application of those laws will depend on decisions made by prison
4-24 and parole authorities, but eligibility for parole does not
4-25 guarantee that parole will be granted."]
4-26 SECTION 6. Section 2(g), Article 37.071, Code of Criminal
4-27 Procedure, is amended to read as follows:
5-1 (g) If the jury returns an affirmative finding on each issue
5-2 submitted under Subsection (b) [of this article] and a negative
5-3 finding on an issue submitted under Subsection (e)(1) [of this
5-4 article], the judge [court] shall sentence the defendant to death.
5-5 If the jury returns an affirmative finding on each issue submitted
5-6 under Subsection (b) and returns an affirmative finding on an issue
5-7 submitted under Subsection (e)(1) or is unable to answer an issue
5-8 submitted under Subsection (e)(1), the judge shall sentence the
5-9 defendant to life imprisonment without parole. If the jury returns
5-10 a negative finding on any issue submitted under Subsection (b) [of
5-11 this article or an affirmative finding on an issue submitted under
5-12 Subsection (e) of this article] or is unable to answer any issue
5-13 submitted under Subsection (b) [or (e) of this article], the judge
5-14 [court] shall sentence the defendant to imprisonment [confinement]
5-15 in the institutional division of the Texas Department of Criminal
5-16 Justice for life.
5-17 SECTION 7. (a) The change in law made by this Act applies
5-18 only to an offense committed on or after the effective date of this
5-19 Act. For purposes of this section, an offense is committed before
5-20 the effective date of this Act if any element of the offense occurs
5-21 before the effective date.
5-22 (b) An offense committed before the effective date of this
5-23 Act is covered by the law in effect when the offense was committed,
5-24 and the former law is continued in effect for that purpose.
5-25 SECTION 8. This Act takes effect September 1, 2001.