82R3562 GCB-D

By: Dutton H.B. No. 852

A BILL TO BE ENTITLED

AN ACT

relating to abolishing the death penalty.

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 Texas Department of Criminal Justice 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 Texas Department of Criminal Justice for:

(1) life, if the individual's case was transferred to the court under Section 54.02, Family Code; or

(2) 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:

(1) a sentence of life imprisonment is mandatory on conviction of the capital felony, if the case was transferred to the court under Section 54.02, Family Code; or

(2) a sentence of life imprisonment without parole is mandatory on conviction of the capital felony.

SECTION 2. Article 1.13(a), Code of Criminal Procedure, is amended to read as follows:

(a) The defendant in a criminal prosecution for any offense [other than a capital felony case in which the State notifies the court and the defendant that it will seek the death penalty] shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. The consent and approval by the court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea.

SECTION 3. Article 4.03, Code of Criminal Procedure, is amended to read as follows:

Art. 4.03. COURTS OF APPEALS. The Courts of Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts in all criminal cases [except those in which the death penalty has been assessed]. This article may [Article shall] not be so construed as to embrace any case which has been appealed from any inferior court to the county court, the county criminal court, or county court at law, in which the fine imposed by the county court, the county criminal court or county court at law does not exceed one hundred dollars, unless the sole issue is the constitutionality of the statute or ordinance on which the conviction is based.

SECTION 4. Section 2, Article 4.04, Code of Criminal Procedure, is amended to read as follows:

Sec. 2. The Court of Criminal Appeals shall have, and is hereby given, final appellate and review jurisdiction in criminal cases coextensive with the limits of the state, and its determinations shall be final. [The appeal of all cases in which the death penalty has been assessed shall be to the Court of Criminal Appeals.] In addition, the Court of Criminal Appeals may, on its own motion, with or without a petition for such discretionary review being filed by one of the parties, review any decision of a court of appeals in a criminal case. Discretionary review by the Court of Criminal Appeals is not a matter of right, but of sound judicial discretion.

SECTION 5. The heading to Article 11.07, Code of Criminal Procedure, is amended to read as follows:

Art. 11.07. PROCEDURE AFTER CONVICTION [WITHOUT DEATH PENALTY].

SECTION 6. Section 2, Article 11.07, Code of Criminal Procedure, is amended to read as follows:

Sec. 2. After indictment found in any felony case[, other than a case in which the death penalty is imposed,] and before conviction, the writ must be made returnable in the county where the offense has been committed.

SECTION 7. Section 3(b), Article 11.07, Code of Criminal Procedure, is amended to read as follows:

(b) An application for writ of habeas corpus filed after final conviction in a felony case[, other than a case in which the death penalty is imposed,] must be filed with the clerk of the court in which the conviction being challenged was obtained, and the clerk shall assign the application to that court. When the application is received by that court, a writ of habeas corpus, returnable to the Court of Criminal Appeals, shall issue by operation of law. The clerk of that court shall make appropriate notation thereof, assign to the case a file number (ancillary to that of the conviction being challenged), and forward a copy of the application by certified mail, return receipt requested, or by personal service to the attorney representing the state in that court, who shall answer the application not later than the 15th day after the date the copy of the application is received. Matters alleged in the application not admitted by the state are deemed denied.

SECTION 8. Articles 26.04(b) and (g), Code of Criminal Procedure, are amended to read as follows:

(b) Procedures adopted under Subsection (a) shall:

(1) authorize only the judges of the county courts, statutory county courts, and district courts trying criminal cases in the county, or the judges' designee, to appoint counsel for indigent defendants in the county;

(2) apply to each appointment of counsel made by a judge or the judges' designee in the county;

(3) ensure that each indigent defendant in the county who is charged with a misdemeanor punishable by confinement or with a felony and who appears in court without counsel has an opportunity to confer with appointed counsel before the commencement of judicial proceedings;

(4) [require appointments for defendants in capital cases in which the death penalty is sought to comply with any applicable requirements under Articles 11.071 and 26.052;

[(5)] ensure that each attorney appointed from a public appointment list to represent an indigent defendant perform the attorney's duty owed to the defendant in accordance with the adopted procedures, the requirements of this code, and applicable rules of ethics; and

(5) [(6)] ensure that appointments are allocated among qualified attorneys in a manner that is fair, neutral, and nondiscriminatory.

(g) A countywide alternative program for appointing counsel for indigent defendants in criminal cases is established by a formal action in which two-thirds of the judges of the courts designated under this subsection vote to establish the alternative program. An alternative program for appointing counsel in misdemeanor and felony cases may be established in the manner provided by this subsection by the judges of the county courts, statutory county courts, and district courts trying criminal cases in the county. An alternative program for appointing counsel in misdemeanor cases may be established in the manner provided by this subsection by the judges of the county courts and statutory county courts trying criminal cases in the county. An alternative program for appointing counsel in felony cases may be established in the manner provided by this subsection by the judges of the district courts trying criminal cases in the county. In a county in which an alternative program is established:

(1) the alternative program may:

(A) use a single method for appointing counsel or a combination of methods; and

(B) use a multicounty appointment list using a system of rotation; and

(2) the procedures adopted under Subsection (a) must ensure that:

(A) attorneys appointed using the alternative program to represent defendants in misdemeanor cases punishable by confinement:

(i) meet specified objective qualifications, which may be graduated according to the degree of seriousness of the offense, for providing representation in misdemeanor cases punishable by confinement; and

(ii) are approved by a majority of the judges of the county courts and statutory county courts trying misdemeanor cases in the county;

(B) attorneys appointed using the alternative program to represent defendants in felony cases:

(i) meet specified objective qualifications, which may be graduated according to the degree of seriousness of the offense, for providing representation in felony cases; and

(ii) are approved by a majority of the judges of the district courts trying felony cases in the county; and

(C) [appointments for defendants in capital cases in which the death penalty is sought comply with the requirements of Article 26.052; and

[(D)] appointments are reasonably and impartially allocated among qualified attorneys.

SECTION 9. Article 26.05(d), Code of Criminal Procedure, is amended to read as follows:

(d) A counsel in a criminal [noncapital] case, other than an attorney with a public defender, appointed to represent a defendant under this code shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts. Expenses incurred with prior court approval shall be reimbursed in the [same] manner provided for [capital cases] by Articles 26.052(f) and (g), and expenses incurred without prior court approval shall be reimbursed in the manner provided for [capital cases] by Article 26.052(h).

SECTION 10. The heading to Article 26.052, Code of Criminal Procedure, is amended to read as follows:

Art. 26.052. [APPOINTMENT OF COUNSEL IN DEATH PENALTY CASE;] REIMBURSEMENT OF [INVESTIGATIVE] EXPENSES INCURRED BY APPOINTED COUNSEL.

SECTION 11. Section 3, Article 31.08, Code of Criminal Procedure, is amended to read as follows:

Sec. 3. An [Except for the review of a death sentence under Section 2(h), Article 37.071, or under Section 2(h), Article 37.072, an] appeal taken in a cause returned to the original county under this article must be docketed in the appellate district in which the county of original venue is located.

SECTION 12. Article 35.15(b), Code of Criminal Procedure, is amended to read as follows:

(b) In [non-capital] felony cases [and in capital cases in which the State does not seek the death penalty], the State and defendant shall each be entitled to ten peremptory challenges. If two or more defendants are tried together each defendant shall be entitled to six peremptory challenges and the State to six for each defendant.

SECTION 13. Article 35.16(b), Code of Criminal Procedure, is amended to read as follows:

(b) A challenge for cause may be made by the State for any of the following reasons:

1. That the juror has conscientious scruples in regard to the imposition [infliction] of a sentence of imprisonment for life without parole [the punishment of death for crime,] in a capital case[, where the State is seeking the death penalty];

2. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the defendant; and

3. That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.

SECTION 14. Article 35.17, Code of Criminal Procedure, is amended to read as follows:

Art. 35.17. VOIR DIRE EXAMINATION. [1.] When the court in its discretion so directs, [except as provided in Section 2,] the state and defendant shall conduct the voir dire examination of prospective jurors in the presence of the entire panel.

[2. In a capital felony case in which the State seeks the death penalty, the court shall propound to the entire panel of prospective jurors questions concerning the principles, as applicable to the case on trial, of reasonable doubt, burden of proof, return of indictment by grand jury, presumption of innocence, and opinion. Then, on demand of the State or defendant, either is entitled to examine each juror on voir dire individually and apart from the entire panel, and may further question the juror on the principles propounded by the court.]

SECTION 15. Article 35.25, Code of Criminal Procedure, is amended to read as follows:

Art. 35.25. MAKING PEREMPTORY CHALLENGE. The [In non-capital cases and in capital cases in which the State's attorney has announced that he will not qualify the jury for, or seek the death penalty, the] party desiring to challenge any juror peremptorily shall strike the name of such juror from the list furnished him by the clerk.

SECTION 16. Article 35.26, Code of Criminal Procedure, is amended to read as follows:

Art. 35.26. LISTS RETURNED TO CLERK. [(a)] When the parties have made or declined to make their peremptory challenges, they shall deliver their lists to the clerk. The [Except as provided in Subsection (b) of this section, the] clerk shall, if the case be in the district court, call off the first twelve names on the lists that have not been stricken. If the case be in the county court, he shall call off the first six names on the lists that have not been stricken. Those whose names are called shall be the jury.

[(b) In a capital case in which the state seeks the death penalty, the court may direct that two alternate jurors be selected and that the first fourteen names not stricken be called off by the clerk. The last two names to be called are the alternate jurors.]

SECTION 17. Section 2(b), Article 37.07, Code of Criminal Procedure, is amended to read as follows:

(b) If [Except as provided by Article 37.071 or 37.072, if] a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense; provided, however, that (1) in any criminal action where the jury may recommend community supervision and the defendant filed his sworn motion for community supervision before the trial began, and (2) in other cases where the defendant so elects in writing before the commencement of the voir dire examination of the jury panel, the punishment shall be assessed by the same jury, except as provided in Section 3(c) of this article and in Article 44.29. If a finding of guilty is returned, the defendant may, with the consent of the attorney for the state, change his election of one who assesses the punishment.

SECTION 18. Section 1, Article 42.01, Code of Criminal Procedure, is amended to read as follows:

Sec. 1. A judgment is the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant. The sentence served shall be based on the information contained in the judgment. The judgment shall reflect:

1. The title and number of the case;

2. That the case was called and the parties appeared, naming the attorney for the state, the defendant, and the attorney for the defendant, or, where a defendant is not represented by counsel, that the defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel;

3. The plea or pleas of the defendant to the offense charged;

4. Whether the case was tried before a jury or a jury was waived;

5. The submission of the evidence, if any;

6. In cases tried before a jury that the jury was charged by the court;

7. The verdict or verdicts of the jury or the finding or findings of the court;

8. In the event of a conviction that the defendant is adjudged guilty of the offense as found by the verdict of the jury or the finding of the court, and that the defendant be punished in accordance with the jury's verdict or the court's finding as to the proper punishment;

9. In the event of conviction where [death or] any punishment is assessed that the defendant be sentenced to [death,] a term of confinement or community supervision, or to pay a fine, as the case may be;

10. In the event of conviction where the imposition of sentence is suspended and the defendant is placed on community supervision, setting forth the punishment assessed, the length of community supervision, and the conditions of community supervision;

11. In the event of acquittal that the defendant be discharged;

12. The county and court in which the case was tried and, if there was a change of venue in the case, the name of the county in which the prosecution was originated;

13. The offense or offenses for which the defendant was convicted;

14. The date of the offense or offenses and degree of offense for which the defendant was convicted;

15. The term of sentence;

16. The date judgment is entered;

17. The date sentence is imposed;

18. The date sentence is to commence and any credit for time served;

19. The terms of any order entered pursuant to Article 42.08 of this code that the defendant's sentence is to run cumulatively or concurrently with another sentence or sentences;

20. The terms of any plea bargain;

21. Affirmative findings entered pursuant to Subdivision (2) of Subsection (a) of Section 3g of Article 42.12 of this code;

22. The terms of any fee payment ordered under Article 42.151 of this code;

23. The defendant's thumbprint taken in accordance with Article 38.33 of this code;

24. In the event that the judge orders the defendant to repay a reward or part of a reward under Articles 37.073 and 42.152 of this code, a statement of the amount of the payment or payments required to be made;

25. In the event that the court orders restitution to be paid to the victim, a statement of the amount of restitution ordered and:

(A) the name and address of a person or agency that will accept and forward restitution payments to the victim; or

(B) if the court specifically elects to have payments made directly to the crime victim, the name and permanent address of the victim at the time of judgment;

26. In the event that a presentence investigation is required by Section 9(a), (b), (h), or (i), Article 42.12 of this code, a statement that the presentence investigation was done according to the applicable provision;

27. In the event of conviction of an offense for which registration as a sex offender is required under Chapter 62, a statement that the registration requirement of that chapter applies to the defendant and a statement of the age of the victim of the offense;

28. The defendant's state identification number required by Article [Section] 60.052(a)(2), if that number has been assigned at the time of the judgment; and

29. The incident number required by Article [Section] 60.052(a)(4), if that number has been assigned at the time of the judgment.

SECTION 19. Sections 1 and 3, Article 42.09, Code of Criminal Procedure, are amended to read as follows:

Sec. 1. Except as provided in Sections 2 and 3, a defendant shall be delivered to a jail or to the Texas Department of Criminal Justice when his sentence is pronounced[, or his sentence to death is announced,] by the court. The defendant's sentence begins to run on the day it is pronounced, but with all credits, if any, allowed by Article 42.03.

Sec. 3. If a defendant is convicted of a felony and sentenced to [death,] life[,] or a term of more than ten years in the Texas Department of Criminal Justice and he gives notice of appeal, he shall be transferred to the department on a commitment pending a mandate from the court of appeals or the Court of Criminal Appeals.

SECTION 20. Article 64.05, Code of Criminal Procedure, is amended to read as follows:

Art. 64.05. APPEALS. An appeal under this chapter is to a court of appeals in the same manner as an appeal of any other criminal matter[, except that if the convicted person was convicted in a capital case and was sentenced to death, the appeal is a direct appeal to the court of criminal appeals].

SECTION 21. The following provisions of the Code of Criminal Procedure are repealed:

(1) Article 1.13(b);

(2) Article 11.071;

(3) Articles 26.052(a) through (e) and (i) through (m);

(4) Articles 34.04, 35.13, 35.15(a), 36.29(b), 37.071, and 37.072;

(5) Article 42.04;

(6) Articles 43.14 through 43.25; and

(7) Articles 44.251 and 44.29(c).

SECTION 22. The change in law made by this Act applies only to the punishment for an offense under Section 19.03, Penal Code, if the indictment in the case is filed on or after the effective date of this Act. If the indictment in the case is filed before the effective date of this Act, the punishment in the case is governed by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.

SECTION 23. This Act takes effect September 1, 2011.