1-1     By:  Lucio, et al.                                      S.B. No. 85
 1-2           (In the Senate - Filed November 13, 2000; January 10, 2001,
 1-3     read first time and referred to Committee on Criminal Justice;
 1-4     April 23, 2001, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 4, Nays 3; April 23, 2001,
 1-6     sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 85                      By:  West
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to the punishment for a capital offense.
1-11           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12           SECTION 1.  Section 12.31, Penal Code, is amended to read as
1-13     follows:
1-14           Sec. 12.31.  CAPITAL FELONY.  (a)  An individual adjudged
1-15     guilty of a capital felony in a case in which the state seeks the
1-16     death penalty shall be punished by imprisonment in the
1-17     institutional division for life, for life without parole, or by
1-18     death.  An individual adjudged guilty of a capital felony in a case
1-19     in which the state does not seek the death penalty shall be
1-20     punished by imprisonment in the institutional division for life or
1-21     for life without parole.
1-22           (b)  In a capital felony trial in which the state seeks the
1-23     death penalty, prospective jurors shall be informed that a sentence
1-24     of life imprisonment, life imprisonment without parole, or death is
1-25     mandatory on conviction of a capital felony.  In a capital felony
1-26     trial in which the state does not seek the death penalty,
1-27     prospective jurors shall be informed that the state is not seeking
1-28     the death penalty and that a sentence of life imprisonment or life
1-29     imprisonment without parole is mandatory on conviction of the
1-30     capital felony.
1-31           SECTION 2.  Section 508.046, Government Code, is amended to
1-32     read as follows:
1-33           Sec. 508.046.  EXTRAORDINARY VOTE REQUIRED.  To release on
1-34     parole an inmate who was convicted of a capital felony punishable
1-35     by imprisonment for life or an offense under Section 21.11(a)(1) or
1-36     22.021, Penal Code, or who is required under Section 508.145(c) to
1-37     serve 35 calendar years before becoming eligible for release on
1-38     parole, all members of the board must vote on the release on parole
1-39     of the inmate, and at least two-thirds of the members must vote in
1-40     favor of the release on parole.  A member of the board may not vote
1-41     on the release unless the member first receives a copy of a written
1-42     report from the department on the probability that the inmate would
1-43     commit an offense after being released on parole.
1-44           SECTION 3.  Subsection (a), Section 508.145, Government Code,
1-45     is amended to read as follows:
1-46           (a)  An inmate under sentence of death or serving a sentence
1-47     of life imprisonment without parole is not eligible for release on
1-48     parole.
1-49           SECTION 4.  Section 1, Article 37.071, Code of Criminal
1-50     Procedure, is amended to read as follows:
1-51           Sec. 1.  (a)  In a capital case in which the state does not
1-52     seek the death penalty, on a finding at trial that the defendant is
1-53     guilty of a capital offense, or on a plea of guilty or nolo
1-54     contendere by the defendant, the court shall conduct a separate
1-55     sentencing proceeding to determine whether the defendant shall be
1-56     sentenced to life imprisonment or life imprisonment without parole.
1-57     The proceeding shall be conducted in the trial court and before the
1-58     trial jury as soon as practicable, except that the court shall
1-59     empanel a new jury if required by Article 44.29(c) or if the
1-60     defendant has entered a plea of guilty or nolo contendere and
1-61     requested that a jury assess punishment.  After a finding of guilty
1-62     is returned or after the defendant enters a plea of guilty or nolo
1-63     contendere, the defendant, with the consent of the attorney
1-64     representing the state, may change the defendant's election of who
 2-1     assesses punishment.  In the proceeding, evidence may be presented
 2-2     by the state and the defendant or the defendant's counsel as to any
 2-3     matter that the court considers relevant to sentence, in the same
 2-4     manner as if the defendant were being sentenced in a noncapital
 2-5     case.  This subsection may not be construed to authorize the
 2-6     introduction of any evidence secured in violation of the
 2-7     Constitution of the United States or of the State of Texas.
 2-8           (b)  At the proceeding under this section, the court shall
 2-9     instruct the jury that, after taking into account all the evidence
2-10     described by Subsection (a), the jury shall assess as punishment on
2-11     the defendant a sentence of life imprisonment in the institutional
2-12     division of the  Texas Department of Criminal Justice or a sentence
2-13     of imprisonment in the institutional division for life without
2-14     parole.  The court shall further charge the jury that a defendant
2-15     sentenced to imprisonment for life without parole under this
2-16     section is ineligible for release from the institutional division
2-17     on parole or mandatory supervision and that a defendant sentenced
2-18     to imprisonment for life is ineligible for release from the
2-19     institutional division on mandatory supervision and is ineligible
2-20     for release from the institutional division on parole until the
2-21     defendant's actual calendar time served, without consideration of
2-22     good conduct time, equals 40 years.
2-23           (c)  If the jury assesses punishment as life imprisonment or
2-24     is unable to assess punishment, the court shall sentence the
2-25     defendant to life imprisonment in the institutional division of the
2-26     Texas Department of Criminal Justice.  If the jury assesses
2-27     punishment as imprisonment for life without parole, the court shall
2-28     sentence the defendant to imprisonment in the institutional
2-29     division of the Texas Department of Criminal Justice for life
2-30     without parole.  [If a defendant is found guilty in a capital
2-31     felony case in which the state does not seek the death penalty, the
2-32     judge shall sentence the defendant to life imprisonment.]
2-33           SECTION 5.  Subsection (e), Section 2, Article 37.071, Code
2-34     of Criminal Procedure, is amended to read as follows:
2-35           (e)(1)  The judge [court] shall instruct the jury that if the
2-36     jury returns an affirmative finding to each issue submitted under
2-37     Subsection (b) [of this article], it shall answer the following
2-38     issue:
2-39           Whether, taking into consideration all of the evidence,
2-40     including the circumstances of the offense, the defendant's
2-41     character and background, and the personal moral culpability of the
2-42     defendant, there is a sufficient mitigating circumstance or
2-43     circumstances to warrant that a sentence of life imprisonment or
2-44     life imprisonment without parole rather than a death sentence be
2-45     imposed.
2-46                 (2)  The judge shall instruct the jury that:
2-47                       (A)  if the jury returns an affirmative finding
2-48     on each issue submitted under Subsection (b) and a negative finding
2-49     on an issue submitted under Subdivision (1), the judge shall
2-50     sentence the defendant to death;
2-51                       (B)  if the jury returns an affirmative finding
2-52     on each issue submitted under Subsection (b) and returns an
2-53     affirmative finding on an issue submitted under Subdivision (1),
2-54     the judge shall sentence the defendant to life imprisonment without
2-55     parole; and
2-56                       (C)  if the jury returns a negative finding on an
2-57     issue submitted under Subsection (b), the judge shall sentence the
2-58     defendant to life imprisonment.
2-59                 (3)  The judge, after instructing the jury under
2-60     Subdivision (2), shall further charge the jury that a defendant
2-61     sentenced to imprisonment for life without parole under this
2-62     article is ineligible for release from the institutional division
2-63     on parole or mandatory supervision and that a defendant sentenced
2-64     to imprisonment for life under this article is ineligible for
2-65     release from the institutional division on mandatory supervision
2-66     and is ineligible for release from the institutional division on
2-67     parole until the defendant's actual calendar time served, without
2-68     consideration of good conduct time, equals 40 years. [The court, on
2-69     the written request of the attorney representing the defendant,
 3-1     shall:]
 3-2                       [(A)  instruct the jury that if the jury answers
 3-3     that a circumstance or circumstances warrant that a sentence of
 3-4     life imprisonment rather than a death sentence be imposed, the
 3-5     court will sentence the defendant to imprisonment in the
 3-6     institutional division of the Texas Department of Criminal Justice
 3-7     for life; and]
 3-8                       [(B)  charge the jury in writing as follows:]
 3-9           ["Under the law applicable in this case, if the defendant is
3-10     sentenced to imprisonment in the institutional division of the
3-11     Texas Department of Criminal Justice for life, the defendant will
3-12     become eligible for release on parole, but not until the actual
3-13     time served by the defendant equals 40 years, without consideration
3-14     of any good conduct time.  It cannot accurately be predicted how
3-15     the parole laws might be applied to this defendant if the defendant
3-16     is sentenced to a term of imprisonment for life because the
3-17     application of those laws will depend on decisions made by prison
3-18     and parole authorities, but eligibility for parole does not
3-19     guarantee that parole will be granted."]
3-20           SECTION 6.  Subsection (g), Section 2, Article 37.071, Code
3-21     of Criminal Procedure, is amended to read as follows:
3-22           (g)  If the jury returns an affirmative finding on each issue
3-23     submitted under Subsection (b) [of this article] and a negative
3-24     finding on an issue submitted under Subsection (e)(1) [of this
3-25     article], the judge [court] shall sentence the defendant to death.
3-26     If the jury returns an affirmative finding on each issue submitted
3-27     under Subsection (b) and returns an affirmative finding on an issue
3-28     submitted under Subsection (e)(1) or is unable to answer an issue
3-29     submitted under Subsection (e)(1), the judge shall sentence the
3-30     defendant to imprisonment in the institutional division of the
3-31     Texas Department of Criminal Justice for life without parole.  If
3-32     the jury returns a negative finding on any issue submitted under
3-33     Subsection (b) [of this article or an affirmative finding on an
3-34     issue submitted under Subsection (e) of this article] or is unable
3-35     to answer any issue submitted under Subsection (b) [or (e) of this
3-36     article], the judge [court] shall sentence the defendant to
3-37     imprisonment [confinement] in the institutional division [of the
3-38     Texas Department of Criminal Justice] for life.
3-39           SECTION 7.  Subsection (c), Article 44.29, Code of Criminal
3-40     Procedure, is amended to read as follows:
3-41           (c)  If any court sets aside or invalidates the sentence of a
3-42     defendant convicted of an offense under Section 19.03, Penal Code,
3-43     [and sentenced to death] on the basis of any error affecting
3-44     punishment only, the court shall not set the conviction aside but
3-45     rather shall commence a new punishment hearing under Article 37.071
3-46     or Article 37.0711 of this code, as appropriate, as if a finding of
3-47     guilt had been returned.  The court shall empanel a jury for the
3-48     sentencing stage of the trial in the same manner as a jury is to be
3-49     empaneled by the court in other trials before the court for
3-50     offenses under Section 19.03, Penal Code.  At the new punishment
3-51     hearing, the court shall permit both the state and the defendant to
3-52     introduce evidence as permitted by Article 37.071 or Article
3-53     37.0711 of this code.
3-54           SECTION 8.  (a)  The change in law made by this Act applies
3-55     only to an offense committed on or after the effective date of this
3-56     Act.  For purposes of this section, an offense is committed before
3-57     the effective date of this Act if any element of the offense occurs
3-58     before the effective date.
3-59           (b)  An offense committed before the effective date of this
3-60     Act is covered by the law in effect when the offense was committed,
3-61     and the former law is continued in effect for that purpose.
3-62           SECTION 9.   This Act takes effect September 1, 2001.
3-63                                  * * * * *