S.B. No. 60
AN ACT
relating to the representation of certain defendants in capital
cases and to the punishment for a capital felony or other felony
punishable by a term of imprisonment exceeding 99 years.
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 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 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 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 without parole is mandatory on
conviction of the capital felony.
SECTION 2. Subsection (c), Section 8.07, Penal Code, is
amended to read as follows:
(c) No person may, in any case, be punished by death for an
offense committed while the person [he] was younger than 18 [17]
years.
SECTION 3. 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 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 4. Subsections (a) and (c), Section 508.145,
Government Code, are 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.
(c) An inmate serving a [life] sentence under Section
12.42(c)(2), Penal Code, is not eligible for release on parole
until the actual calendar time the inmate has served, without
consideration of good conduct time, equals 35 calendar years.
SECTION 5. Subsections (a) and (f), Section 508.146,
Government Code, are amended to read as follows:
(a) An inmate, other than an inmate who is serving a
sentence of death or life without parole or an inmate who has a
reportable conviction or adjudication under Chapter 62, Code of
Criminal Procedure, may be released on medically recommended
intensive supervision on a date designated by a parole panel
described by Subsection (e), except that an inmate with an instant
offense that is an offense described in Section 3g, Article 42.12,
Code of Criminal Procedure, may only be considered if a medical
condition of terminal illness or long-term care has been diagnosed,
if:
(1) the Texas Correctional Office on Offenders with
Medical or Mental Impairments, in cooperation with the Correctional
Managed Health Care Committee, identifies the inmate as being
elderly, physically disabled, mentally ill, terminally ill, or
mentally retarded or having a condition requiring long-term care;
(2) the parole panel determines that, based on the
inmate's condition and a medical evaluation, the inmate does not
constitute a threat to public safety; and
(3) the Texas Correctional Office on Offenders with
Medical or Mental Impairments, in cooperation with the pardons and
paroles division, has prepared for the inmate a medically
recommended intensive supervision plan that requires the inmate to
submit to electronic monitoring, places the inmate on
super-intensive supervision, or otherwise ensures appropriate
supervision of the inmate.
(f) An inmate who is not a citizen of the United States, as
defined by federal law, who is not under a sentence of death or life
without parole, and who does not have a reportable conviction or
adjudication under Chapter 62, Code of Criminal Procedure, or an
instant offense described in Section 3g, Article 42.12, Code of
Criminal Procedure, may be released to immigration authorities
pending deportation on a date designated by a parole panel
described by Subsection (e) if the parole panel determines that on
release the inmate would be deported to another country and that the
inmate does not constitute a threat to public safety in the other
country or this country and is unlikely to reenter this country
illegally.
SECTION 6. 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 sentence the defendant to life imprisonment without parole.
SECTION 7. Subdivision (1), Subsection (a), Section 2,
Article 37.071, Code of Criminal Procedure, is amended to read as
follows:
(1) If a defendant is tried for a capital offense in
which the state seeks the death penalty, on a finding that the
defendant is guilty of a capital offense, the court shall conduct a
separate sentencing proceeding to determine whether the defendant
shall be sentenced to death or life imprisonment without parole.
The proceeding shall be conducted in the trial court and, except as
provided by Article 44.29(c) of this code, before the trial jury as
soon as practicable. 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 deems relevant to sentence, including
evidence of the defendant's background or character or the
circumstances of the offense that mitigates against the imposition
of the death penalty. This subdivision shall 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. The
state and the defendant or the defendant's counsel shall be
permitted to present argument for or against sentence of death. The
court, the attorney representing the state, the defendant, or the
defendant's counsel may not inform a juror or a prospective juror of
the effect of a failure of a jury to agree on issues submitted under
Subsection (c) or (e) [of this article].
SECTION 8. Subsection (e), Section 2, 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
without parole rather than a death sentence be imposed.
(2) 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 without parole 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 without parole; and
(B) 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. [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 9. Subsection (g), Section 2, 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) [of this article] or an affirmative finding on an
issue submitted under Subsection (e)(1) [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 imprisonment without parole.
SECTION 10. Subsections (a) and (b), Article 44.251, Code
of Criminal Procedure, are amended to read as follows:
(a) The court of criminal appeals shall reform a sentence of
death to a sentence of confinement in the institutional division of
the Texas Department of Criminal Justice for life without parole if
the court finds that there is legally insufficient evidence to
support an affirmative answer to an issue submitted to the jury
under Section 2(b), Article 37.071[, or Section 3(b), Article
37.0711, of this code or a negative answer to an issue submitted to
a jury under Section 2(e), Article 37.071, or Section 3(e), Article
37.0711, of this code].
(b) The court of criminal appeals shall reform a sentence of
death to a sentence of confinement in the institutional division of
the Texas Department of Criminal Justice for life without parole
if:
(1) the court finds reversible error that affects the
punishment stage of the trial other than a finding of insufficient
evidence under Subsection (a) of this article; and
(2) within 30 days after the date on which the opinion
is handed down, the date the court disposes of a timely request for
rehearing, or the date that the United States Supreme Court
disposes of a timely filed petition for writ of certiorari,
whichever date is later, the prosecuting attorney files a motion
requesting that the sentence be reformed to confinement for life
without parole.
SECTION 11. Chapter 44, Code of Criminal Procedure, is
amended by adding Article 44.2511 to read as follows:
Art. 44.2511. REFORMATION OF SENTENCE IN CAPITAL CASE FOR
OFFENSE COMMITTED BEFORE SEPTEMBER 1, 1991. (a) This article
applies to the reformation of a sentence of death in a capital case
for an offense committed before September 1, 1991. For purposes of
this subsection, an offense is committed before September 1, 1991,
if every element of the offense occurred before that date.
(b) The court of criminal appeals shall reform a sentence of
death to a sentence of confinement in the institutional division of
the Texas Department of Criminal Justice for life if the court finds
that there is legally insufficient evidence to support an
affirmative answer to an issue submitted to the jury under Section
3(b), Article 37.0711.
(c) The court of criminal appeals shall reform a sentence of
death to a sentence of confinement in the institutional division of
the Texas Department of Criminal Justice for life if:
(1) the court finds reversible error that affects the
punishment stage of the trial other than a finding of insufficient
evidence under Subsection (b); and
(2) within 30 days after the date on which the opinion
is handed down, the date the court disposes of a timely request for
rehearing, or the date that the United States Supreme Court
disposes of a timely filed petition for writ of certiorari,
whichever date is later, the prosecuting attorney files a motion
requesting that the sentence be reformed to confinement for life.
(d) If the court of criminal appeals finds reversible error
that affects the punishment stage of the trial only, as described by
Subsection (c), and the prosecuting attorney does not file a motion
for reformation of sentence in the period described by that
subsection, the defendant shall receive a new sentencing trial in
the manner required by Article 44.29(c).
SECTION 12. Subsection (b), Section 508.145, Government
Code, is repealed.
SECTION 13. Subsection (d), Section 2, Article 11.071, Code
of Criminal Procedure, is amended to read as follows:
(d) The court of criminal appeals shall adopt rules for the
appointment of attorneys as counsel under this section and the
convicting court may appoint an attorney as counsel under this
section only if the appointment is approved by the court of criminal
appeals in any manner provided by those rules. The rules must
require that an attorney appointed as lead counsel under this
section not have been found by a federal or state court to have
rendered ineffective assistance of counsel during the trial or
appeal of any capital case.
SECTION 14. Subsection (d), Article 26.052, Code of
Criminal Procedure, is amended to read as follows:
(d)(1) The committee shall adopt standards for the
qualification of attorneys to be appointed to represent indigent
defendants in capital cases in which the death penalty is sought.
(2) The standards must require that a trial [an]
attorney appointed as lead counsel to a death penalty case or an
attorney appointed as lead counsel in the direct appeal of a death
penalty case:
(A) be a member of the State Bar of Texas;
(B) exhibit proficiency and commitment to
providing quality representation to defendants in death penalty
cases;
(C) have not been found by a federal or state
court to have rendered ineffective assistance of counsel during the
trial or appeal of any capital case;
(D) have at least five years of experience in
criminal litigation;
(E) [(D)] have tried to a verdict as lead defense
counsel a significant number of felony cases, including homicide
trials and other trials for offenses punishable as second or first
degree felonies or capital felonies;
(F) [(E)] have trial experience in:
(i) the use of and challenges to mental
health or forensic expert witnesses; and
(ii) investigating and presenting
mitigating evidence at the penalty phase of a death penalty trial;
and
(G) [(F)] have participated in continuing legal
education courses or other training relating to criminal defense in
death penalty cases.
(3) The committee shall prominently post the standards
in each district clerk's office in the region with a list of
attorneys qualified for appointment.
(4) Not later than the second anniversary of the date
an attorney is placed on the list of attorneys qualified for
appointment in death penalty cases and each year following the
second anniversary, the attorney must present proof to the
committee that the attorney has successfully completed the minimum
continuing legal education requirements of the State Bar of Texas,
including a course or other form of training relating to the defense
of death penalty cases. The committee shall remove the attorney's
name from the list of qualified attorneys if the attorney fails to
provide the committee with proof of completion of the continuing
legal education requirements.
SECTION 15. The court of criminal appeals shall amend rules
adopted under Subsection (d), Section 2, Article 11.071, Code of
Criminal Procedure, as necessary to comply with that subsection, as
amended by this Act, not later than January 1, 2006.
SECTION 16. A local selection committee shall amend
standards previously adopted by the committee to conform with the
requirements of Subsection (d), Article 26.052, Code of Criminal
Procedure, as amended by this Act, not later than the 75th day after
the effective date of this Act. An attorney appointed to a death
penalty case on or after the 75th day after the effective date of
this Act must meet the standards adopted in conformity with the
amended Subsection (d), Article 26.052. An attorney appointed to a
death penalty case before the 75th day after the effective date of
this Act is covered by the law in effect when the attorney was
appointed, and the former law is continued in effect for that
purpose.
SECTION 17. (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 18. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 60 passed the Senate on
April 14, 2005, by the following vote: Yeas 26, Nays 5; and that
the Senate concurred in House amendments on May 28, 2005, by the
following vote: Yeas 26, Nays 5.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 60 passed the House, with
amendments, on May 25, 2005, by the following vote: Yeas 121,
Nays 22, two present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor