By:  West, Zaffirini                                   S.B. No. 133
           Moncrief
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the admissibility in a criminal trial of race or
 1-3     ethnicity as a predictor of future criminal behavior.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Subsection (a), Section 3, Article 37.07, Code of
 1-6     Criminal Procedure, is amended to read as follows:
 1-7           (a)(1)  Regardless of the plea and whether the punishment be
 1-8     assessed by the judge or the jury, evidence may be offered by the
 1-9     state and the defendant as to any matter the court deems relevant
1-10     to sentencing, including but not limited to the prior criminal
1-11     record of the defendant, his general reputation, his character, an
1-12     opinion regarding his character, the circumstances of the offense
1-13     for which he is being tried, and, notwithstanding Rules 404 and
1-14     405, Texas Rules of [Criminal] Evidence, any other evidence of an
1-15     extraneous crime or bad act that is shown beyond a reasonable doubt
1-16     by evidence to have been committed by the defendant or for which he
1-17     could be held criminally responsible, regardless of whether he has
1-18     previously been charged with or finally convicted of the crime or
1-19     act.  A court may consider as a factor in mitigating punishment the
1-20     conduct of a defendant while participating in a program under
1-21     Chapter 17 as a condition of release on bail.  Additionally,
1-22     notwithstanding Rule 609(d), Texas Rules of [Criminal] Evidence,
1-23     and subject to Subsection (h), evidence may be offered by the state
1-24     and the defendant of an adjudication of delinquency based on a
1-25     violation by the defendant of a penal law of the grade of:
 2-1                       (A) [(1)]  a felony; or
 2-2                       (B) [(2)]  a misdemeanor punishable by
 2-3     confinement in jail.
 2-4                 (2)  Notwithstanding Subdivision (1), evidence may not
 2-5     be offered by the state to establish that the race or ethnicity of
 2-6     the defendant makes it likely that the defendant will engage in
 2-7     future criminal conduct.
 2-8           SECTION 2.  Subsection (a), Section 2, Article 37.071, Code
 2-9     of Criminal Procedure, is amended to read as follows:
2-10           (a)(1)  If a defendant is tried for a capital offense in
2-11     which the state seeks the death penalty, on a finding that the
2-12     defendant is guilty of a capital offense, the court shall conduct a
2-13     separate sentencing proceeding to determine whether the defendant
2-14     shall be sentenced to death or life imprisonment.  The proceeding
2-15     shall be conducted in the trial court and, except as provided by
2-16     Article 44.29(c) of this code, before the trial jury as soon as
2-17     practicable.  In the proceeding, evidence may be presented by the
2-18     state and the defendant or the defendant's counsel as to any matter
2-19     that the court deems relevant to sentence, including evidence of
2-20     the defendant's background or character or the circumstances of the
2-21     offense that mitigates against the imposition of the death penalty.
2-22     This subdivision [subsection] shall not be construed to authorize
2-23     the introduction of any evidence secured in violation of the
2-24     Constitution of the United States or of the State of Texas.  The
2-25     state and the defendant or the defendant's counsel shall be
2-26     permitted to present argument for or against sentence of death.
 3-1     The court, the attorney representing the state, the defendant, or
 3-2     the defendant's counsel may not inform a juror or a prospective
 3-3     juror of the effect of a failure of a jury to agree on issues
 3-4     submitted under Subsection (c) or (e) of this article.
 3-5                 (2)  Notwithstanding Subdivision (1), evidence may not
 3-6     be offered by the state to establish that the race or ethnicity of
 3-7     the defendant makes it likely that the defendant will engage in
 3-8     future criminal conduct.
 3-9           SECTION 3.  Subsection (a), Section 3, Article 37.0711, Code
3-10     of Criminal Procedure, is amended to read as follows:
3-11           (a)(1)  If a defendant is tried for a capital offense in
3-12     which the state seeks the death penalty, on a finding that the
3-13     defendant is guilty of a capital offense, the court shall conduct a
3-14     separate sentencing proceeding to determine whether the defendant
3-15     shall be sentenced to death or life imprisonment.  The proceeding
3-16     shall be conducted in the trial court and, except as provided by
3-17     Article 44.29(c) of this code, before the trial jury as soon as
3-18     practicable.  In the proceeding, evidence may be presented as to
3-19     any matter that the court deems relevant to sentence.  This
3-20     subdivision [subsection] shall not be construed to authorize the
3-21     introduction of any evidence secured in violation of the
3-22     Constitution of the United States or of this state.  The state and
3-23     the defendant or the defendant's counsel shall be permitted to
3-24     present argument for or against sentence of death.
3-25                 (2)  Notwithstanding Subdivision (1), evidence may not
3-26     be offered by the state to establish that the race or ethnicity of
 4-1     the defendant makes it likely that the defendant will engage in
 4-2     future criminal conduct.
 4-3           SECTION 4.  The change in law made by this Act applies to any
 4-4     sentencing proceeding commencing on or after the effective date of
 4-5     this Act, regardless of when the offense for which the defendant
 4-6     was convicted occurred.
 4-7           SECTION 5.  This Act takes effect September 1, 2001.