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A BILL TO BE ENTITLED
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AN ACT
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relating to the joint or separate prosecution of a capital felony |
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charged against two or more defendants and the extent of a |
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defendant's criminal responsibility for the conduct of a |
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coconspirator in capital felony cases. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. This Act shall be known as the Kenneth Foster, |
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Jr., Act. |
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SECTION 2. Article 36.09, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 36.09. SEVERANCE ON SEPARATE INDICTMENTS. (a) Two |
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or more defendants who are jointly or separately indicted or |
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complained against for the same offense or any offense growing out |
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of the same transaction may be, in the discretion of the court, |
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tried jointly or separately as to one or more defendants; provided |
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that in any event either defendant may testify for the other or on |
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behalf of the state; and provided further, that in cases in which, |
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upon timely motion to sever, and evidence introduced thereon, it is |
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made known to the court that there is a previous admissible |
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conviction against one defendant or that a joint trial would be |
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prejudicial to any defendant, the court shall order a severance as |
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to the defendant whose joint trial would prejudice the other |
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defendant or defendants. |
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(b) Notwithstanding Subsection (a), the court may not join |
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two or more defendants in the same criminal trial if any defendant |
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to be tried is indicted or complained against for a capital felony, |
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and the court shall order a severance as to any two or more |
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defendants who are jointly indicted or complained against for a |
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capital felony. |
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SECTION 3. Section 1, Article 37.071, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 1. (a) If a defendant is found guilty in a capital |
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felony case in which the state does not seek the death penalty, the |
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judge shall sentence the defendant to life imprisonment without |
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parole. |
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(b) A defendant who is found guilty in a capital felony case |
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only as a party under Section 7.02(b), Penal Code, may not be |
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sentenced to death, and the state may not seek the death penalty in |
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any case in which the defendant's liability is based solely on that |
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section. |
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SECTION 4. Section 2, Article 37.0711, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 2. (a) If a defendant is found guilty in a case in |
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which the state does not seek the death penalty, the judge shall |
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sentence the defendant to life imprisonment. |
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(b) A defendant who is found guilty in a capital felony case |
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only as a party under Section 7.02(b), Penal Code, may not be |
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sentenced to death, and the state may not seek the death penalty in |
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any case in which the defendant's liability is based solely on that |
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section. |
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SECTION 5. Article 36.09, Code of Criminal Procedure, as |
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amended by this Act, applies only to a trial commenced in a criminal |
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case on or after the effective date of this Act. A trial commenced |
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before the effective date of this Act is covered by the law in |
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effect when the trial commenced, and the former law is continued in |
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effect for that purpose. |
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SECTION 6. Section 1, Article 37.071, and Section 2, |
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Article 37.0711, Code of Criminal Procedure, as amended by this |
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Act, apply only to the sentence imposed in a criminal proceeding |
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that commences on or after the effective date of this Act. The |
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sentence imposed in a criminal proceeding that commenced before the |
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effective date of this Act is governed by the law in effect when the |
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proceeding commenced, and the former law is continued in effect for |
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that purpose. |
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SECTION 7. This Act takes effect September 1, 2009. |