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 * * * * *