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.