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.