By Dutton                                             H.B. No. 1328
         77R5658 GWK-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the setting of an execution date in a capital case.
 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-4           SECTION 1.  Section 5(b), Article 11.071, Code of Criminal
 1-5     Procedure, is amended to read as follows:
 1-6           (b)  If the convicting court receives a subsequent
 1-7     application, the clerk of the court shall:
 1-8                 (1)  attach a notation that the application is a
 1-9     subsequent application;
1-10                 (2)  assign to the case a file number that is ancillary
1-11     to that of the conviction being challenged; and
1-12                 (3)  immediately send to the court of criminal appeals
1-13     a copy of:
1-14                       (A)  the application;
1-15                       (B)  the notation; and
1-16                       (C)  [the order scheduling the applicant's
1-17     execution, if scheduled; and]
1-18                       [(D)]  any order the judge of the convicting
1-19     court directs to be attached to the application.
1-20           SECTION 2.  Article 43.15, Code of Criminal Procedure, is
1-21     amended to read as follows:
1-22           Art. 43.15.  WARRANT OF EXECUTION.  (a)  The court of
1-23     criminal appeals shall issue, as soon as practicable after the
1-24     following date, a warrant for the execution of an inmate whose
 2-1     conviction has been affirmed by the court:
 2-2                 (1)  the date the court denies relief to the inmate
 2-3     under Article 11.071, if the inmate files an initial application
 2-4     for a writ of habeas corpus under that article that is a timely
 2-5     application under Section 4 of that article; or
 2-6                 (2)  the date any initial application for a writ of
 2-7     habeas corpus filed by the inmate under Article 11.071 would be an
 2-8     untimely application under Section 4.
 2-9           (b)  If in response to a subsequent application for a writ of
2-10     habeas corpus under Article 11.071 the court issues a stay of
2-11     execution, or if a stay of the execution is ordered for any reason
2-12     by the court of criminal appeals or a federal court, the court of
2-13     criminal appeals on resolution of all issues may issue a new
2-14     warrant of execution.
2-15           (c)  A warrant issued under this article shall be issued to
2-16     the executive director of the Texas Department of Criminal Justice
2-17     and shall state the fact of the conviction and the date on which
2-18     the inmate is to be executed.
2-19           [Whenever any person is sentenced to death, the clerk of the
2-20     court in which the sentence is pronounced, shall within ten days
2-21     after the court enters its order setting the date for execution,
2-22     issue a warrant under the seal of the court for the execution of
2-23     the sentence of death, which shall recite the fact of conviction,
2-24     setting forth specifically the offense, the judgment of the court,
2-25     the time fixed for his execution, and directed to the Director of
2-26     the Department of Corrections at Huntsville, Texas, commanding him
2-27     to proceed, at the time and place named in the order of execution,
 3-1     to carry the same into execution, as provided in the preceding
 3-2     Article, and shall deliver such warrant to the sheriff of the
 3-3     county in which such judgment of conviction was had, to be by him
 3-4     delivered to the said Director of the Department of Corrections,
 3-5     together with the condemned person if he has not previously been so
 3-6     delivered.]
 3-7           SECTION 3.  Article 43.22, Code of Criminal Procedure, is
 3-8     amended to read as follows:
 3-9           Art. 43.22.  ESCAPE FROM TEXAS DEPARTMENT OF CRIMINAL JUSTICE
3-10     [CORRECTIONS].  If the condemned person escapes after his delivery
3-11     to the Texas Department of Criminal Justice [Director of the
3-12     Department of Corrections], and is not retaken before the time
3-13     appointed for his execution, any person may arrest and commit him
3-14     to the department [Director of the Department of Corrections]
3-15     whereupon the executive director [Director of the Department of
3-16     Corrections] shall certify the fact of his escape and recapture to
3-17     the court in which sentence was passed; and the court of criminal
3-18     appeals[, either in term-time or vacation,] shall again appoint a
3-19     time for the execution which shall not be less than thirty days
3-20     from the date of such appointment; and thereupon the clerk of such
3-21     court shall certify such appointment to the department, which
3-22     [Director of the Department of Corrections, who] shall proceed at
3-23     the time so appointed to execute the condemned, as hereinabove
3-24     provided.  [The sheriff or other officer or other person performing
3-25     any service under this and the preceding Article shall receive the
3-26     same compensation as is provided for similar services under the
3-27     provisions of Articles 1029 or 1030 of the Code of Criminal
 4-1     Procedure of 1925, as amended.]  If for any reason execution is
 4-2     delayed beyond the date set, then the court of criminal appeals
 4-3     [which originally sentenced the defendant] may set a later date for
 4-4     execution.
 4-5           SECTION 4.  Article 46.04(k), Code of Criminal Procedure, as
 4-6     added by Chapter 654, Acts of the 76th Legislature, Regular
 4-7     Session, 1999, is amended to read as follows:
 4-8           (k)  If, on the basis of reports provided under Subsection
 4-9     (i), the motion, any attached documents, any responsive pleadings,
4-10     and any evidence introduced in the final competency hearing, the
4-11     trial court makes a finding by a preponderance of the evidence that
4-12     the defendant is incompetent to be executed, the clerk shall send
4-13     immediately to the court of criminal appeals in accordance with
4-14     Section 8(d), Article 11.071, the appropriate documents for that
4-15     court's determination of whether any existing execution date
4-16     previously set by the court of criminal appeals should be withdrawn
4-17     and a stay of execution issued.  If a stay of execution is issued
4-18     by the court of criminal appeals, the trial court periodically
4-19     shall order that the defendant be reexamined by mental health
4-20     experts to determine whether the defendant is no longer incompetent
4-21     to be executed.
4-22           SECTION 5.  (a)  Articles 42.04 and 43.141, Code of Criminal
4-23     Procedure, are repealed.
4-24           (b)  Subsection (l), Article 46.04, Code of Criminal
4-25     Procedure, as added by Chapter 654, Acts of the 76th Legislature,
4-26     Regular Session, 1999, is repealed.
4-27           SECTION 6.  (a)  The change in law made by this Act applies
 5-1     only to the execution of an inmate convicted of a capital offense
 5-2     for whom:
 5-3                 (1)  no execution date exists on the effective date of
 5-4     this Act; or
 5-5                 (2)  an execution date exists on the effective date of
 5-6     this Act but on the effective date is subject to a stay of
 5-7     execution.
 5-8           (b)  For an inmate other than an inmate described by
 5-9     Subsection (a), the law applicable to the inmate is the law as it
5-10     existed on the date on which the execution date was set, and the
5-11     former law is continued in effect for that purpose.
5-12           (c)  The court of criminal appeals may not set an execution
5-13     date for an inmate that is before September 1, 2003.
5-14           SECTION 7.  This Act takes effect immediately if it receives
5-15     a vote of two-thirds of all the members elected to each house, as
5-16     provided by Section 39, Article III, Texas Constitution.  If this
5-17     Act does not receive the vote necessary for immediate effect, this
5-18     Act takes effect September 1, 2001.