By: Rodriguez S.B. No. 1083

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; changing parole eligibility.

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) for life or for a term of not more than 99 years or less than 5 years [life], if the individual committed the offense when younger than 18 years of age; or

(2) for life without parole, if the individual committed the offense when 18 years of age or older.

(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 either for life or for a term of not more than 99 years or less than 5 years is mandatory on conviction of a capital felony, if the individual committed the offense when younger than 18 years of age; 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 12.42, Penal Code, is amended by adding Subsection (e) to read as follows:

(e) For purposes of this section, a person convicted of a capital felony who is punished by imprisonment for a term of not more than 99 years or less than 5 years is considered to have been convicted of a felony of the first degree.

SECTION 3. Articles 1.13(a) and (b), Code of Criminal Procedure, are amended to read as follows:

(a) Subject to Subsection (b), the [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 or a capital felony case described by Section 12.31(a)(2), Penal Code, shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that, except as provided by Article 27.19, the 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 that attorney, and filed in the papers of the cause before the defendant enters the defendant's plea.

(b) In a capital felony case described by Section 12.31(a)(1), Penal Code [in which the attorney representing the State notifies the court and the defendant that it will not seek the death penalty], the defendant may waive the right to trial by jury in writing and in open court.

SECTION 4. Section 1, Article 37.071, Code of Criminal Procedure, is amended to read as follows:

Sec. 1. (a)(1) If a defendant is found guilty in a capital felony case in which the state does not seek the death penalty, the defendant [judge] shall be sentenced [sentence the defendant to life imprisonment or to life imprisonment without parole] as described [required] by this section and Section 12.31, Penal Code.

(2) The judge shall impose a sentence of imprisonment in the Texas Department of Criminal Justice for life without parole on a defendant who was 18 years of age or older at the time the capital felony was committed.

(3) The judge or jury shall impose a sentence of imprisonment in the Texas Department of Criminal Justice for a term of life or for not more than 99 years or less than 5 years on a defendant who was younger than 18 years of age at the time the capital felony was committed.

(b) For purposes of assessing punishment under Subsection (a)(3), the court shall conduct a separate sentencing proceeding in the trial court and before the trial jury as soon as practicable. In the proceeding, the defendant or the defendant's counsel is entitled to present evidence tending to diminish defendant's culpability or tending to show the defendant's capacity for rehabilitation such as 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 outcome of a comprehensive mental health evaluation that is conducted by a disinterested expert, such as a psychiatrist or psychologist, who is qualified by education and clinical training in adolescent mental health issues and includes;

(A) family interviews;

(B) family history;

(C) prenatal history;

(D) developmental history;

(E) medical history;

(F) history of treatment for substance use;

(G) social history; and

(H) a psychological evaluation;

(7) peer or familial pressure;

(8) level of participation in the offense;

(9) inability to effectively communicate with defense counsel or to participate meaningfully in the defense of the case;

(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) This section may not be construed to authorize the introduction of any evidence secured in violation of the United States Constitution or the Texas Constitution. The court shall permit the state and the defendant or the defendant's counsel to present arguments relevant to sentencing. The introduction of evidence of extraneous conduct is governed by the notice requirements of Section 3(g), Article 37.07.

SECTION 5. Section 508.145(b), Government Code, is amended to read as follows:

(b)(1) An inmate serving a [life] sentence of imprisonment for a term of not more than 99 years or less than 5 years under Section 12.31(a)(1), Penal Code, for a capital felony is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals one-half of the sentence or 25 [40] calendar years, whichever is less.

(2) An inmate serving a sentence of imprisonment for life under Section 12.31(a)(1), Penal Code, for a capital felony is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals 25 calendar years.

SECTION 6. (a) Except as provided by Subsection (b) of this section, the change in law made by this Act applies to:

(1) a criminal action for which a final conviction exists on the effective date of this Act if the defendant is serving a sentence of life or a sentence of life without parole for the offense and was younger than 18 years of age at the time the offense was committed; and

(2) any other criminal action that is 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.

(b) The change in law made by this Act in adding Section 12.42(e), Penal Code, applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this subsection, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

SECTION 7. 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, 2015.