By Turner of Harris                                   H.B. No. 1860
         77R6331 GWK-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the applicability of the death penalty to a capital
 1-3     offense committed by a person younger than 18 years of age at the
 1-4     time of the commission of the offense.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6           SECTION 1. Article 37.071, Code of Criminal Procedure, is
 1-7     amended by adding Section 1A to read as follows:
 1-8           Sec. 1A. On notice from the attorney representing the state
 1-9     that the state intends to seek the death penalty in the trial of a
1-10     defendant who was younger than 18 years of age at the time of the
1-11     commission of the offense, the court shall hold a hearing to
1-12     determine whether the defendant was at the time of the commission
1-13     of the offense sufficiently mature to understand the consequences
1-14     of the defendant's actions.  The court shall appoint disinterested
1-15     experts experienced and qualified in determining mental and
1-16     emotional maturity to examine the defendant and determine whether
1-17     the defendant was at the time of committing the offense
1-18     sufficiently mature to understand the consequences of the
1-19     defendant's actions.  The court shall order the defendant to submit
1-20     to an examination by experts appointed under this article.
1-21           SECTION 2. Section 2(a), Article 37.071, Code of Criminal
1-22     Procedure, is amended to read as follows:
1-23           (a)  If a defendant is tried for a capital offense in which
1-24     the state seeks the death penalty, on a finding that the defendant
 2-1     is guilty of a capital offense, the court shall conduct a separate
 2-2     sentencing proceeding to determine whether the defendant shall be
 2-3     sentenced to death or life imprisonment.  The proceeding shall be
 2-4     conducted in the trial court and, except as provided by Article
 2-5     44.29(c) [of this code], before the trial jury as soon as
 2-6     practicable.  In the proceeding, evidence may be presented by the
 2-7     state and the defendant or the defendant's counsel as to any matter
 2-8     that the court deems relevant to sentence, including evidence of
 2-9     the defendant's background or character or the circumstances of the
2-10     offense that mitigates against the imposition of the death penalty
2-11     and including evidence as to whether the defendant was at the time
2-12     of committing the offense sufficiently mature to understand the
2-13     consequences of the defendant's actions.  This subsection shall not
2-14     be construed to authorize the introduction of any evidence secured
2-15     in violation of the Constitution of the United States or of the
2-16     State of Texas.  The state and the defendant or the defendant's
2-17     counsel shall be permitted to present argument for or against
2-18     sentence of death.  The court, the attorney representing the state,
2-19     the defendant, or the defendant's counsel may not inform a juror or
2-20     a prospective juror of the effect of a failure of a jury to agree
2-21     on issues submitted under Subsection (b) [(c)] or (e) [of this
2-22     article].
2-23           SECTION 3. 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
 3-7     rather than a death sentence be imposed.
 3-8                 (2)  If raised by evidence existing in reports of
 3-9     disinterested experts prepared under Section 1A, the court, on the
3-10     written request of the attorney representing the defendant, shall
3-11     instruct the jury that if the jury returns an affirmative finding
3-12     to each issue submitted under Subsection (b), the jury shall answer
3-13     the following issue:
3-14           Whether the defendant at the time of committing the offense,
3-15     was not sufficiently mature to understand the consequences of the
3-16     defendant's actions.
3-17                 (3)  The court, on the written request of the attorney
3-18     representing the defendant, shall:
3-19                       (A)  instruct the jury that if the jury answers
3-20     that a circumstance or circumstances warrant that a sentence of
3-21     life imprisonment rather than a death sentence be imposed or
3-22     answers that the defendant at the time of committing the offense,
3-23     was not sufficiently mature to understand the consequences of the
3-24     defendant's actions, the court will sentence the defendant to
3-25     imprisonment in the institutional division of the Texas Department
3-26     of Criminal Justice for life; and
3-27                       (B)  charge the jury in writing as follows:
 4-1           "Under the law applicable in this case, if the defendant is
 4-2     sentenced to imprisonment in the institutional division of the
 4-3     Texas Department of Criminal Justice for life, the defendant will
 4-4     become eligible for release on parole, but not until the actual
 4-5     time served by the defendant equals 40 years, without consideration
 4-6     of any good conduct time.  It cannot accurately be predicted how
 4-7     the parole laws might be applied to this defendant if the defendant
 4-8     is sentenced to a term of imprisonment for life because the
 4-9     application of those laws will depend on decisions made by prison
4-10     and parole authorities, but eligibility for parole does not
4-11     guarantee that parole will be granted."
4-12           SECTION 4. Section 2(f), Article 37.071, Code of Criminal
4-13     Procedure, is amended to read as follows:
4-14           (f)  The court shall charge the jury that in answering an
4-15     [the] issue submitted under Subsection (e) [of this article], the
4-16     jury:
4-17                 (1)  shall answer the issue "yes" or "no";
4-18                 (2)  may not answer the issue "no" unless it agrees
4-19     unanimously and may not answer the issue "yes" unless 10 or more
4-20     jurors agree;
4-21                 (3)  need not agree on what particular evidence
4-22     supports an affirmative finding on the issue; and
4-23                 (4)  in respect to the issue submitted under Subsection
4-24     (e)(2), shall consider mitigating evidence to be evidence that a
4-25     juror might regard as reducing the defendant's moral
4-26     blameworthiness.
4-27           SECTION 5. Section 2(g), Article 37.071, Code of Criminal
 5-1     Procedure, is amended to read as follows:
 5-2           (g)  If the jury returns an affirmative finding on each issue
 5-3     submitted under Subsection (b) [of this article] and a negative
 5-4     finding on each [an] issue submitted under Subsection (e) [of this
 5-5     article], the court shall sentence the defendant to death.  If the
 5-6     jury returns a negative finding on any issue submitted under
 5-7     Subsection (b) [of this article] or an affirmative finding on any
 5-8     [an] issue submitted under Subsection (e) [of this article] or is
 5-9     unable to answer any issue submitted under Subsection (b) or (e)
5-10     [of this article], the court shall sentence the defendant to
5-11     confinement in the institutional division of the Texas Department
5-12     of Criminal Justice for life.
5-13           SECTION 6. The change in law made by this Act applies only to
5-14     a capital case that commences on or after the effective date of
5-15     this Act.  A capital case that commences before the effective date
5-16     of this Act is covered by the law in effect when the case
5-17     commenced, and the former law is continued in effect for that
5-18     purpose.
5-19           SECTION 7.  This Act takes effect September 1, 2001.