1-1     By:  West                                              S.B. No. 133
 1-2           (In the Senate - Filed November 27, 2000; January 11, 2001,
 1-3     read first time and referred to Committee on Criminal Justice;
 1-4     February 27, 2001, reported favorably, as amended, by the following
 1-5     vote:  Yeas 7, Nays 0; February 27, 2001, sent to printer.)
 1-6     COMMITTEE AMENDMENT NO. 1                              By:  Staples
 1-7           Amend S.B. No. 133 (Introduced Version) in each place where
 1-8     it appears (Page 1, lines 47-50; Page 2, lines 11-14; and Page 2,
 1-9     lines 31-34), by striking "(2)  Notwithstanding Subdivision (1),
1-10     evidence may not be offered by the state or the defendant to
1-11     establish that the race or ethnicity of the defendant makes it
1-12     either likely or unlikely that the defendant will engage in future
1-13     criminal conduct." and substituting "(2)  Notwithstanding
1-14     Subdivision (1), evidence may not be offered by the state to
1-15     establish that the race or ethnicity of the defendant makes it
1-16     likely that the defendant will engage in future criminal conduct."
1-17                            A BILL TO BE ENTITLED
1-18                                   AN ACT
1-19     relating to the admissibility in a criminal trial of race or
1-20     ethnicity as a predictor of future criminal behavior.
1-21           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-22           SECTION 1.  Subsection (a), Section 3, Article 37.07, Code of
1-23     Criminal Procedure, is amended to read as follows:
1-24           (a)(1)  Regardless of the plea and whether the punishment be
1-25     assessed by the judge or the jury, evidence may be offered by the
1-26     state and the defendant as to any matter the court deems relevant
1-27     to sentencing, including but not limited to the prior criminal
1-28     record of the defendant, his general reputation, his character, an
1-29     opinion regarding his character, the circumstances of the offense
1-30     for which he is being tried, and, notwithstanding Rules 404 and
1-31     405, Texas Rules of [Criminal] Evidence, any other evidence of an
1-32     extraneous crime or bad act that is shown beyond a reasonable doubt
1-33     by evidence to have been committed by the defendant or for which he
1-34     could be held criminally responsible, regardless of whether he has
1-35     previously been charged with or finally convicted of the crime or
1-36     act.  A court may consider as a factor in mitigating punishment the
1-37     conduct of a defendant while participating in a program under
1-38     Chapter 17 as a condition of release on bail.  Additionally,
1-39     notwithstanding Rule 609(d), Texas Rules of [Criminal] Evidence,
1-40     and subject to Subsection (h), evidence may be offered by the state
1-41     and the defendant of an adjudication of delinquency based on a
1-42     violation by the defendant of a penal law of the grade of:
1-43                       (A) [(1)]  a felony; or
1-44                       (B) [(2)]  a misdemeanor punishable by
1-45     confinement in jail.
1-46                 (2)  Notwithstanding Subdivision (1), evidence may not
1-47     be offered by the state or the defendant to establish that the race
1-48     or ethnicity of the defendant makes it either likely or unlikely
1-49     that the defendant will engage in future criminal conduct.
1-50           SECTION 2.  Subsection (a), Section 2, Article 37.071, Code
1-51     of Criminal Procedure, is amended to read as follows:
1-52           (a)(1)  If a defendant is tried for a capital offense in
1-53     which the state seeks the death penalty, on a finding that the
1-54     defendant is guilty of a capital offense, the court shall conduct a
1-55     separate sentencing proceeding to determine whether the defendant
1-56     shall be sentenced to death or life imprisonment.  The proceeding
1-57     shall be conducted in the trial court and, except as provided by
1-58     Article 44.29(c) of this code, before the trial jury as soon as
1-59     practicable.  In the proceeding, evidence may be presented by the
1-60     state and the defendant or the defendant's counsel as to any matter
1-61     that the court deems relevant to sentence, including evidence of
1-62     the defendant's background or character or the circumstances of the
1-63     offense that mitigates against the imposition of the death penalty.
 2-1     This subdivision [subsection] shall not be construed to authorize
 2-2     the introduction of any evidence secured in violation of the
 2-3     Constitution of the United States or of the State of Texas.  The
 2-4     state and the defendant or the defendant's counsel shall be
 2-5     permitted to present argument for or against sentence of death.
 2-6     The court, the attorney representing the state, the defendant, or
 2-7     the defendant's counsel may not inform a juror or a prospective
 2-8     juror of the effect of a failure of a jury to agree on issues
 2-9     submitted under Subsection (c) or (e) of this article.
2-10                 (2)  Notwithstanding Subdivision (1), evidence may not
2-11     be offered by the state or the defendant to establish that the race
2-12     or ethnicity of the defendant makes it either likely or unlikely
2-13     that the defendant will engage in future criminal conduct.
2-14           SECTION 3.  Subsection (a), Section 3, Article 37.0711, Code
2-15     of Criminal Procedure, is amended to read as follows:
2-16           (a)(1)  If a defendant is tried for a capital offense in
2-17     which the state seeks the death penalty, on a finding that the
2-18     defendant is guilty of a capital offense, the court shall conduct a
2-19     separate sentencing proceeding to determine whether the defendant
2-20     shall be sentenced to death or life imprisonment.  The proceeding
2-21     shall be conducted in the trial court and, except as provided by
2-22     Article 44.29(c) of this code, before the trial jury as soon as
2-23     practicable.  In the proceeding, evidence may be presented as to
2-24     any matter that the court deems relevant to sentence.  This
2-25     subdivision [subsection] shall not be construed to authorize the
2-26     introduction of any evidence secured in violation of the
2-27     Constitution of the United States or of this state.  The state and
2-28     the defendant or the defendant's counsel shall be permitted to
2-29     present argument for or against sentence of death.
2-30                 (2)  Notwithstanding Subdivision (1), evidence may not
2-31     be offered by the state or the defendant to establish that the race
2-32     or ethnicity of the defendant makes it either likely or unlikely
2-33     that the defendant will engage in future criminal conduct.
2-34           SECTION 4.  The change in law made by this Act applies to any
2-35     sentencing proceeding commencing on or after the effective date of
2-36     this Act, regardless of when the offense for which the defendant
2-37     was convicted occurred.
2-38           SECTION 5.  This Act takes effect September 1, 2001.
2-39                                  * * * * *