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79R580 UM-D
By: Dutton H.B. No. 454
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. (a) In a capital case in which the state does not
seek the death penalty, on a finding at trial that the defendant is
guilty of a capital offense, or on a plea of guilty or nolo
contendere by the defendant, the court shall conduct a separate
sentencing proceeding to determine whether the defendant shall be
sentenced to life imprisonment or life imprisonment without parole.
The proceeding shall be conducted in the trial court and before the
trial jury as soon as practicable, except that the court shall
empanel a new jury if required by Article 44.29(c) or if the
defendant has entered a plea of guilty or nolo contendere and
requested that a jury assess punishment. After a finding of guilty
is returned or after the defendant enters a plea of guilty or nolo
contendere, the defendant, with the consent of the attorney
representing the state, may change the defendant's election of who
assesses punishment. In the proceeding, evidence may be presented
by the state and the defendant or the defendant's counsel as to any
matter that the court considers relevant to sentence, in the same
manner as if the defendant were being sentenced in a noncapital
case. This subsection may not be construed to authorize the
introduction of any evidence secured in violation of the
Constitution of the United States or of the State of Texas.
(b) At the proceeding under this section, the court shall
instruct the jury that, after taking into account all the evidence
described by Subsection (a), the jury shall assess as punishment on
the defendant a sentence of life imprisonment in the institutional
division of the Texas Department of Criminal Justice or a sentence
of imprisonment in the institutional division for life without
parole. The court shall further charge the jury that a defendant
sentenced to imprisonment for life without parole under this
section is ineligible for release from the institutional division
on parole or mandatory supervision and that a defendant sentenced
to imprisonment for life is ineligible for release from the
institutional division on mandatory supervision and is ineligible
for release from the institutional division on parole until the
defendant's actual calendar time served, without consideration of
good conduct time, equals 40 years.
(c) If the jury assesses punishment as life imprisonment or
is unable to assess punishment, the court shall sentence the
defendant to life imprisonment in the institutional division of the
Texas Department of Criminal Justice. If the jury assesses
punishment as imprisonment for life without parole, the court shall
sentence the defendant to imprisonment in the institutional
division for life without parole. [If a defendant is found guilty
in a capital felony case in which the state does not seek the death
penalty, the judge shall 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 judge [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 judge shall instruct the jury that:
(A) if the jury returns an affirmative finding on
each issue submitted under Subsection (b) and a negative finding on
an issue submitted under Subdivision (1), the judge shall sentence
the defendant to death;
(B) if the jury returns an affirmative finding on
each issue submitted under Subsection (b) and returns an
affirmative finding on an issue submitted under Subdivision (1),
the judge shall sentence the defendant to life imprisonment without
parole; and
(C) if the jury returns a negative finding on an
issue submitted under Subsection (b), the judge shall sentence the
defendant to life imprisonment.
(3) The judge, after instructing the jury under
Subdivision (2), shall further charge the jury that a defendant
sentenced to imprisonment for life without parole under this
article is ineligible for release from the institutional division
of the Texas Department of Criminal Justice on parole or mandatory
supervision and that a defendant sentenced to imprisonment for life
under this article is ineligible for release from the institutional
division on mandatory supervision and is ineligible for release
from the institutional division 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 judge [court] shall sentence the defendant to death.
If the jury returns an affirmative finding on each issue submitted
under Subsection (b) and returns an affirmative finding on an issue
submitted under Subsection (e)(1) or is unable to answer an issue
submitted under Subsection (e)(1), the judge shall sentence the
defendant to imprisonment in the institutional division of the
Texas Department of Criminal Justice for life without parole. If
the jury returns a negative finding on any issue submitted under
Subsection (b) [of this article or an affirmative finding on an
issue submitted under Subsection (e) of this article] or is unable
to answer any issue submitted under Subsection (b) [or (e) of this
article], the judge [court] shall sentence the defendant to
imprisonment [confinement] in the institutional division [of the
Texas Department of Criminal Justice] for life.
SECTION 7. Article 44.29(c), Code of Criminal Procedure, is
amended to read as follows:
(c) If any court sets aside or invalidates the sentence of a
defendant convicted of an offense under Section 19.03, Penal Code,
[and sentenced to death] on the basis of any error affecting
punishment only, the court shall not set the conviction aside but
rather shall commence a new punishment hearing under Article 37.071
or Article 37.0711 of this code, as appropriate, as if a finding of
guilt had been returned. The court shall empanel a jury for the
sentencing stage of the trial in the same manner as a jury is to be
empaneled by the court in other trials before the court for offenses
under Section 19.03, Penal Code. At the new punishment hearing, the
court shall permit both the state and the defendant to introduce
evidence as permitted by Article 37.071 or Article 37.0711 of this
code.
SECTION 8. (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 9. This Act takes effect September 1, 2005.