78S10018 KEL-F
By: McClendon H.B. No. 17
A BILL TO BE ENTITLED
AN ACT
relating to the punishment for a capital offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 12.31, Penal Code, is amended to read as
follows:
Sec. 12.31. CAPITAL FELONY. (a) An individual adjudged
guilty of a capital felony in a case in which the state seeks the
death penalty shall be punished by imprisonment in the
institutional division for life, for life without parole, or by
death. An individual adjudged guilty of a capital felony in a case
in which the state does not seek the death penalty shall be punished
by imprisonment in the institutional division for life or for life
without parole.
(b) In a capital felony trial in which the state seeks the
death penalty, prospective jurors shall be informed that a sentence
of life imprisonment, life imprisonment without parole, or death is
mandatory on conviction of a capital felony. In a capital felony
trial in which the state does not seek the death penalty,
prospective jurors shall be informed that the state is not seeking
the death penalty and that a sentence of life imprisonment or life
imprisonment without parole is mandatory on conviction of the
capital felony.
SECTION 2. Section 508.046, Government Code, is amended to
read as follows:
Sec. 508.046. EXTRAORDINARY VOTE REQUIRED. To release on
parole an inmate who was convicted of a capital felony punishable by
imprisonment for life or an offense under Section 21.11(a)(1) or
22.021, Penal Code, or who is required under Section 508.145(c) to
serve 35 calendar years before becoming eligible for release on
parole, all members of the board must vote on the release on parole
of the inmate, and at least two-thirds of the members must vote in
favor of the release on parole. A member of the board may not vote
on the release unless the member first receives a copy of a written
report from the department on the probability that the inmate would
commit an offense after being released on parole.
SECTION 3. Section 508.145(a), Government Code, is amended
to read as follows:
(a) An inmate under sentence of death or serving a sentence
of life imprisonment without parole is not eligible for release on
parole.
SECTION 4. Section 1, Article 37.071, Code of Criminal
Procedure, is amended to read as follows:
Sec. 1. If a defendant is found guilty in a capital felony
case in which the state does not seek the death penalty, the judge
shall charge and instruct the jury as provided by Section 2(e)
[sentence the defendant to life imprisonment].
SECTION 5. Section 2(e), Article 37.071, Code of Criminal
Procedure, is amended to read as follows:
(e)(1) The court shall instruct the jury that if the jury
returns an affirmative finding to each issue submitted under
Subsection (b) of this article, it shall answer the following
issue:
Whether, taking into consideration all of the evidence,
including the circumstances of the offense, the defendant's
character and background, and the personal moral culpability of the
defendant, there is a sufficient mitigating circumstance or
circumstances to warrant that a sentence of life imprisonment or
life imprisonment without parole rather than a death sentence be
imposed.
(2) The court shall instruct the jury that if the jury
returns a negative finding on an issue submitted under Subsection
(b), is unable to answer an issue under Subsection (b), or returns
an affirmative finding on the issue submitted under Subdivision
(1), the jury, taking into account all the evidence described by
Subdivision (1), shall also answer the issue as to whether the
defendant should be sentenced to life imprisonment rather than life
imprisonment without parole. The court shall further charge the
jury that a defendant sentenced to confinement for life without
parole under this article is ineligible for release from the
department on parole or mandatory supervision and that a defendant
sentenced to confinement for life under this article is ineligible
for release from the department on mandatory supervision and is
ineligible for release on parole until the defendant's actual
calendar time served, without consideration of good conduct time,
equals 40 years. [The court, on the written request of the attorney
representing the defendant, shall:
[(A) instruct the jury that if the jury answers
that a circumstance or circumstances warrant that a sentence of
life imprisonment rather than a death sentence be imposed, the
court will sentence the defendant to imprisonment in the
institutional division of the Texas Department of Criminal Justice
for life; and
[(B) charge the jury in writing as follows:
["Under the law applicable in this case, if the defendant is
sentenced to imprisonment in the institutional division of the
Texas Department of Criminal Justice for life, the defendant will
become eligible for release on parole, but not until the actual time
served by the defendant equals 40 years, without consideration of
any good conduct time. It cannot accurately be predicted how the
parole laws might be applied to this defendant if the defendant is
sentenced to a term of imprisonment for life because the
application of those laws will depend on decisions made by prison
and parole authorities, but eligibility for parole does not
guarantee that parole will be granted."]
SECTION 6. Section 2(g), Article 37.071, Code of Criminal
Procedure, is amended to read as follows:
(g) If the jury returns an affirmative finding on each issue
submitted under Subsection (b) [of this article] and a negative
finding on an issue submitted under Subsection (e)(1) [of this
article], the court shall sentence the defendant to death. If the
jury returns a negative finding on any issue submitted under
Subsection (b) and [of this article or] an affirmative finding on an
issue submitted under Subsection (e)(2) [of this article] or is
unable to answer any issue submitted under Subsection (b) or (e) [of
this article], the court shall sentence the defendant to
confinement in the institutional division of the Texas Department
of Criminal Justice for life. If the jury returns a negative
finding under Subsection (e)(2), the court shall sentence the
defendant to life imprisonment without parole.
SECTION 7. (a) The change in law made by this Act applies
only to an offense committed on or after the effective date of this
Act. For purposes of this section, an offense is committed before
the effective date of this Act if any element of the offense occurs
before the effective date.
(b) An offense committed before the effective date of this
Act is covered by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose.
SECTION 8. This Act takes effect November 1, 2003.