By:  Lucio, et al.                                      S.B. No. 85
                                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:
1-25           Sec. 508.046.  EXTRAORDINARY VOTE REQUIRED.  To release on
 2-1     parole an inmate who was convicted of a capital felony punishable
 2-2     by imprisonment for life or an offense under Section 21.11(a)(1) or
 2-3     22.021, Penal Code, or who is required under Section 508.145(c) to
 2-4     serve 35 calendar years before becoming eligible for release on
 2-5     parole, all members of the board must vote on the release on parole
 2-6     of the inmate, and at least two-thirds of the members must vote in
 2-7     favor of the release on parole.  A member of the board may not vote
 2-8     on the release unless the member first receives a copy of a written
 2-9     report from the department on the probability that the inmate would
2-10     commit an offense after being released on parole.
2-11           SECTION 3.  Subsection (a), Section 508.145, Government Code,
2-12     is amended to read as follows:
2-13           (a)  An inmate under sentence of death or serving a sentence
2-14     of life imprisonment without parole is not eligible for release on
2-15     parole.
2-16           SECTION 4.  Section 1, Article 37.071, Code of Criminal
2-17     Procedure, is amended to read as follows:
2-18           Sec. 1.  (a)  In a capital case in which the state does not
2-19     seek the death penalty, on a finding at trial that the defendant is
2-20     guilty of a capital offense, or on a plea of guilty or nolo
2-21     contendere by the defendant, the court shall conduct a separate
2-22     sentencing proceeding to determine whether the defendant shall be
2-23     sentenced to life imprisonment or life imprisonment without parole.
2-24     The proceeding shall be conducted in the trial court and before the
2-25     trial jury as soon as practicable, except that the court shall
2-26     empanel a new jury if required by Article 44.29(c) or if the
 3-1     defendant has entered a plea of guilty or nolo contendere and
 3-2     requested that a jury assess punishment.  After a finding of guilty
 3-3     is returned or after the defendant enters a plea of guilty or nolo
 3-4     contendere, the defendant, with the consent of the attorney
 3-5     representing the state, may change the defendant's election of who
 3-6     assesses punishment.  In the proceeding, evidence may be presented
 3-7     by the state and the defendant or the defendant's counsel as to any
 3-8     matter that the court considers relevant to sentence, in the same
 3-9     manner as if the defendant were being sentenced in a noncapital
3-10     case.  This subsection may not be construed to authorize the
3-11     introduction of any evidence secured in violation of the
3-12     Constitution of the United States or of the State of Texas.
3-13           (b)  At the proceeding under this section, the court shall
3-14     instruct the jury that, after taking into account all the evidence
3-15     described by Subsection (a), the jury shall assess as punishment on
3-16     the defendant a sentence of life imprisonment in the institutional
3-17     division of the  Texas Department of Criminal Justice or a sentence
3-18     of imprisonment in the institutional division for life without
3-19     parole.  The court shall further charge the jury that a defendant
3-20     sentenced to imprisonment for life without parole under this
3-21     section is ineligible for release from the institutional division
3-22     on parole or mandatory supervision and that a defendant sentenced
3-23     to imprisonment for life is ineligible for release from the
3-24     institutional division on mandatory supervision and is ineligible
3-25     for release from the institutional division on parole until the
3-26     defendant's actual calendar time served, without consideration of
 4-1     good conduct time, equals 40 years.
 4-2           (c)  If the jury assesses punishment as life imprisonment or
 4-3     is unable to assess punishment, the court shall sentence the
 4-4     defendant to life imprisonment in the institutional division of the
 4-5     Texas Department of Criminal Justice.  If the jury assesses
 4-6     punishment as imprisonment for life without parole, the court shall
 4-7     sentence the defendant to imprisonment in the institutional
 4-8     division of the Texas Department of Criminal Justice for life
 4-9     without parole.  [If a defendant is found guilty in a capital
4-10     felony case in which the state does not seek the death penalty, the
4-11     judge shall sentence the defendant to life imprisonment.]
4-12           SECTION 5.  Subsection (e), Section 2, Article 37.071, Code
4-13     of Criminal Procedure, is amended to read as follows:
4-14           (e)(1)  The judge [court] shall instruct the jury that if the
4-15     jury returns an affirmative finding to each issue submitted under
4-16     Subsection (b) [of this article], it shall answer the following
4-17     issue:
4-18           Whether, taking into consideration all of the evidence,
4-19     including the circumstances of the offense, the defendant's
4-20     character and background, and the personal moral culpability of the
4-21     defendant, there is a sufficient mitigating circumstance or
4-22     circumstances to warrant that a sentence of life imprisonment or
4-23     life imprisonment without parole rather than a death sentence be
4-24     imposed.
4-25                 (2)  The judge shall instruct the jury that:
4-26                       (A)  if the jury returns an affirmative finding
 5-1     on each issue submitted under Subsection (b) and a negative finding
 5-2     on an issue submitted under Subdivision (1), the judge shall
 5-3     sentence the defendant to death;
 5-4                       (B)  if the jury returns an affirmative finding
 5-5     on each issue submitted under Subsection (b) and returns an
 5-6     affirmative finding on an issue submitted under Subdivision (1),
 5-7     the judge shall sentence the defendant to life imprisonment without
 5-8     parole; and
 5-9                       (C)  if the jury returns a negative finding on an
5-10     issue submitted under Subsection (b), the judge shall sentence the
5-11     defendant to life imprisonment.
5-12                 (3)  The judge, after instructing the jury under
5-13     Subdivision (2), shall further charge the jury that a defendant
5-14     sentenced to imprisonment for life without parole under this
5-15     article is ineligible for release from the institutional division
5-16     on parole or mandatory supervision and that a defendant sentenced
5-17     to imprisonment for life under this article is ineligible for
5-18     release from the institutional division on mandatory supervision
5-19     and is ineligible for release from the institutional division on
5-20     parole until the defendant's actual calendar time served, without
5-21     consideration of good conduct time, equals 40 years. [The court, on
5-22     the written request of the attorney representing the defendant,
5-23     shall:]
5-24                       [(A)  instruct the jury that if the jury answers
5-25     that a circumstance or circumstances warrant that a sentence of
5-26     life imprisonment rather than a death sentence be imposed, the
 6-1     court will sentence the defendant to imprisonment in the
 6-2     institutional division of the Texas Department of Criminal Justice
 6-3     for life; and]
 6-4                       [(B)  charge the jury in writing as follows:]
 6-5           ["Under the law applicable in this case, if the defendant is
 6-6     sentenced to imprisonment in the institutional division of the
 6-7     Texas Department of Criminal Justice for life, the defendant will
 6-8     become eligible for release on parole, but not until the actual
 6-9     time served by the defendant equals 40 years, without consideration
6-10     of any good conduct time.  It cannot accurately be predicted how
6-11     the parole laws might be applied to this defendant if the defendant
6-12     is sentenced to a term of imprisonment for life because the
6-13     application of those laws will depend on decisions made by prison
6-14     and parole authorities, but eligibility for parole does not
6-15     guarantee that parole will be granted."]
6-16           SECTION 6.  Subsection (g), Section 2, Article 37.071, Code
6-17     of Criminal Procedure, is amended to read as follows:
6-18           (g)  If the jury returns an affirmative finding on each issue
6-19     submitted under Subsection (b) [of this article] and a negative
6-20     finding on an issue submitted under Subsection (e)(1) [of this
6-21     article], the judge [court] shall sentence the defendant to death.
6-22     If the jury returns an affirmative finding on each issue submitted
6-23     under Subsection (b) and returns an affirmative finding on an issue
6-24     submitted under Subsection (e)(1) or is unable to answer an issue
6-25     submitted under Subsection (e)(1), the judge shall sentence the
6-26     defendant to imprisonment in the institutional division of the
 7-1     Texas Department of Criminal Justice for life without parole.  If
 7-2     the jury returns a negative finding on any issue submitted under
 7-3     Subsection (b) [of this article or an affirmative finding on an
 7-4     issue submitted under Subsection (e) of this article] or is unable
 7-5     to answer any issue submitted under Subsection (b) [or (e) of this
 7-6     article], the judge [court] shall sentence the defendant to
 7-7     imprisonment [confinement] in the institutional division [of the
 7-8     Texas Department of Criminal Justice] for life.
 7-9           SECTION 7.  Subsection (c), Article 44.29, Code of Criminal
7-10     Procedure, is amended to read as follows:
7-11           (c)  If any court sets aside or invalidates the sentence of a
7-12     defendant convicted of an offense under Section 19.03, Penal Code,
7-13     [and sentenced to death] on the basis of any error affecting
7-14     punishment only, the court shall not set the conviction aside but
7-15     rather shall commence a new punishment hearing under Article 37.071
7-16     or Article 37.0711 of this code, as appropriate, as if a finding of
7-17     guilt had been returned.  The court shall empanel a jury for the
7-18     sentencing stage of the trial in the same manner as a jury is to be
7-19     empaneled by the court in other trials before the court for
7-20     offenses under Section 19.03, Penal Code.  At the new punishment
7-21     hearing, the court shall permit both the state and the defendant to
7-22     introduce evidence as permitted by Article 37.071 or Article
7-23     37.0711 of this code.
7-24           SECTION 8.  (a)  The change in law made by this Act applies
7-25     only to an offense committed on or after the effective date of this
7-26     Act.  For purposes of this section, an offense is committed before
 8-1     the effective date of this Act if any element of the offense occurs
 8-2     before the effective date.
 8-3           (b)  An offense committed before the effective date of this
 8-4     Act is covered by the law in effect when the offense was committed,
 8-5     and the former law is continued in effect for that purpose.
 8-6           SECTION 9.  This Act takes effect September 1, 2001.