By: Burnam H.B. No. 3617

A BILL TO BE ENTITLED

AN ACT

relating to the punishment for a capital felony committed by an individual younger than 18 years of age.

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, if the individual committed the offense when 18 years of age or older. If the individual committed the offense when younger than 18 years of age, the individual shall be punished for a first-degree felony.

(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] a sentence for a first-degree felony is mandatory on conviction of the capital felony, if the individual committed the offense when younger than 18 years of age [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, if the individual committed the offense when 18 years of age or older.

SECTION 2. Section 1, Article 37.071, Code of Criminal Procedure, is amended to read as follows:

Sec. 1. (a) 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 if the individual committed the offense when 18 years of age or older.

(b) If a defendant is found guilty in a capital felony case in which the individual committed the offense when younger than 18 years of age, the judge or jury shall sentence the defendant for a First Degree Felony.

(c) In determining a sentence under this subsection the sentencing court shall consider the mitigating factors which contributed to the commission of the offense. If the sentence is being determined by a jury, the court shall instruct the jury to consider mitigating factors consistent with this subsection. The defendant or the defendant's counsel may submit mitigating factors to the court including but not limited to the following information about the defendant:

(1) age at the time of the offense;

(2) developmental stage at the time of the offense;

(3) family and community environment;

(4) ability to appreciate the risks and consequences of the conduct;

(5) intellectual capacity;

(6) the outcomes of a comprehensive mental health evaluation conducted by an adolescent mental health professional licensed in the state of Texas at the defendant's request as described in subsection (d);

(7) peer or familial pressure;

(8) level of participation in the offense;

(9) ability to participate meaningfully in his or her defense;

(10) capacity for rehabilitation;

(11) school records and special education evaluations;

(12) trauma history;

(13) faith and community involvement;

(14) involvement in the child welfare system; and

(15) any other mitigating factor or circumstance.

(d) Comprehensive mental health evaluation. The sentencing Court shall consider the outcomes of a comprehensive mental health evaluation which shall be conducted by an adolescent mental health professional licensed in the state of Texas at the defendant's request following conviction. The comprehensive mental health evaluation must include the following:

(1) family interviews;

(2) family history;

(3) prenatal history;

(4) developmental history;

(5) medical history;

(6) history of treatment for substance use;

(7) social history; and

(8) a psychological evaluation.

(e) The defendant or the defendant's counsel may also submit to the court for its consideration as a mitigating factor research about adolescent brain development and its impact on adolescent behavior and capacity for rehabilitation.

SECTION 3. The change in law made by this Act:

(1) applies to a criminal action pending, on appeal, or commenced on or after the effective date of this Act, regardless of whether the criminal action is based on an offense committed before, on, or after that date; and

(2) applies retroactively to resentencing of defendants who were under the age of eighteen at the commission of the crime and are currently serving life without the possibility of parole sentences.

SECTION 4. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2013.