79R14296 E


By:  Lucio, Ellis, Hinojosa, et al.                               S.B. No. 60 

Substitute the following for S.B. No. 60:                                     

By:  Keel                                                     C.S.S.B. No. 60 


A BILL TO BE ENTITLED
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. Section 12.32(a), Penal Code, is amended to read as follows: (a) An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the institutional division for [life or for] any term of not more than 99 years or less than 5 years. SECTION 3. Sections 12.42(c) and (d), Penal Code, are amended to read as follows: (c)(1) Except as provided by Subdivision (2), if it is shown on the trial of a first-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for [life, or for] any term of not more than 99 years or less than 15 years. In addition to imprisonment, an individual may be punished by a fine not to exceed $10,000. (2) A defendant shall be punished by imprisonment in the institutional division for a term of 99 years [life] if: (A) the defendant is convicted of an offense: (i) under Section 22.021 or 22.011, Penal Code; (ii) under Section 20.04(a)(4), Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually; or (iii) under Section 30.02, Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony described by Subparagraph (i) or (ii) or a felony under Section 21.11 or 22.011, Penal Code; and (B) the defendant has been previously convicted of an offense: (i) under Section 43.25 or 43.26, Penal Code, or an offense under Section 43.23, Penal Code, punishable under Subsection (h) of that section; (ii) under Section 21.11, 22.011, 22.021, or 25.02, Penal Code; (iii) under Section 20.04(a)(4), Penal Code, if the defendant committed the offense with the intent to violate or abuse the victim sexually; (iv) under Section 30.02, Penal Code, punishable under Subsection (d) of that section, if the defendant committed the offense with the intent to commit a felony described by Subparagraph (ii) or (iii); or (v) under the laws of another state containing elements that are substantially similar to the elements of an offense listed in Subparagraph (i), (ii), (iii), or (iv). (d) If it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by imprisonment in the institutional division of the Texas Department of Criminal Justice for [life, or for] any term of not more than 99 years or less than 25 years. SECTION 4. 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 5. Sections 508.145(a) and (c), 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 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. Section 2(a)(1), 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. 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 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. 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) [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. Articles 44.251(a) and (b), 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 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)(1), 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 insufficient evidence to support an affirmative answer to an issue submitted to the jury under Section 3(b), Article 37.0711, of this code or a negative answer to an issue submitted to a jury under Section 3(e), Article 37.0711, of this code. (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) 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. (d) If the court of criminal appeals finds reversible error that affects the punishment stage of the trial only, as described by Subsection (c) of this article, 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) of this code. SECTION 12. 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 13. Sections 481.112(e) and (f), Health and Safety Code, are amended to read as follows: (e) An offense under Subsection (a) is punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for [life or for] a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams. (f) An offense under Subsection (a) is punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for [life or for] a term of not more than 99 years or less than 15 years, and a fine not to exceed $250,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 400 grams or more. SECTION 14. Section 481.1121(b), Health and Safety Code, is amended to read as follows: (b) An offense under this section is: (1) a state jail felony if the number of abuse units of the controlled substance is fewer than 20; (2) a felony of the second degree if the number of abuse units of the controlled substance is 20 or more but fewer than 80; (3) a felony of the first degree if the number of abuse units of the controlled substance is 80 or more but fewer than 4,000; and (4) punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for [life or for] a term of not more than 99 years or less than 15 years and a fine not to exceed $250,000, if the number of abuse units of the controlled substance is 4,000 or more. SECTION 15. Section 481.113(e), Health and Safety Code, is amended to read as follows: (e) An offense under Subsection (a) is punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for [life or for] a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 400 grams or more. SECTION 16. Section 481.114(e), Health and Safety Code, is amended to read as follows: (e) An offense under Subsection (a) is punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for [life or for] a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including any adulterants or dilutants, 400 grams or more. SECTION 17. Section 481.115(f), Health and Safety Code, is amended to read as follows: (f) An offense under Subsection (a) is punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for [life or for] a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more. SECTION 18. Section 481.1151(b), Health and Safety Code, is amended to read as follows: (b) An offense under this section is: (1) a state jail felony if the number of abuse units of the controlled substance is fewer than 20; (2) a felony of the third degree if the number of abuse units of the controlled substance is 20 or more but fewer than 80; (3) a felony of the second degree if the number of abuse units of the controlled substance is 80 or more but fewer than 4,000; (4) a felony of the first degree if the number of abuse units of the controlled substance is 4,000 or more but fewer than 8,000; and (5) punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for [life or for] a term of not more than 99 years or less than 15 years and a fine not to exceed $250,000, if the number of abuse units of the controlled substance is 8,000 or more. SECTION 19. Section 481.116(e), Health and Safety Code, is amended to read as follows: (e) An offense under Subsection (a) is punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for [life or for] a term of not more than 99 years or less than five years, and a fine not to exceed $50,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more. SECTION 20. Section 481.117(e), Health and Safety Code, is amended to read as follows: (e) An offense under Subsection (a) is punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for [life or for] a term of not more than 99 years or less than five years, and a fine not to exceed $50,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more. SECTION 21. Section 481.118(e), Health and Safety Code, is amended to read as follows: (e) An offense under Subsection (a) is punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for [life or for] a term of not more than 99 years or less than five years, and a fine not to exceed $50,000, if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more. SECTION 22. Section 481.120(b), Health and Safety Code, is amended to read as follows: (b) An offense under Subsection (a) is: (1) a Class B misdemeanor if the amount of marihuana delivered is one-fourth ounce or less and the person committing the offense does not receive remuneration for the marihuana; (2) a Class A misdemeanor if the amount of marihuana delivered is one-fourth ounce or less and the person committing the offense receives remuneration for the marihuana; (3) a state jail felony if the amount of marihuana delivered is five pounds or less but more than one-fourth ounce; (4) a felony of the second degree if the amount of marihuana delivered is 50 pounds or less but more than five pounds; (5) a felony of the first degree if the amount of marihuana delivered is 2,000 pounds or less but more than 50 pounds; and (6) punishable by imprisonment in the institutional division of the Texas Department of Criminal Justice for [life or for] a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of marihuana delivered is more than 2,000 pounds. SECTION 23. Section 508.145(b), Government Code, is repealed. SECTION 24. Section 2(d), 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 criminal case. SECTION 25. Article 26.052(d), 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: (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 criminal 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 standards must require that an attorney appointed as lead appellate counsel in the direct appeal of a death penalty case have not been found by a federal or state court to have rendered ineffective assistance of counsel during the trial or appeal of any criminal case. (4) The committee shall prominently post the standards in each district clerk's office in the region with a list of attorneys qualified for appointment. (5) [(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 26. The court of criminal appeals shall amend rules adopted under Section 2(d), Article 11.071, Code of Criminal Procedure, as necessary to comply with that section, as amended by this Act, not later than January 1, 2006. SECTION 27. A local selection committee shall amend standards previously adopted by the committee to conform with the requirements of Article 26.052(d), 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 Article 26.052(d). 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 28. (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 29. This Act takes effect September 1, 2005.