86R59 MEW-D

By: Farrar H.B. No. 246

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 committed the offense when younger than 18 years of age; or

(2) 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 is mandatory on conviction of the 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. 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 is entitled [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, 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 [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 but only if the attorney representing the State, in writing and in open court, consents to the waiver.

SECTION 3. 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 for that representation, which may be graduated according to the degree of seriousness of the offense and whether representation will be provided in trial court proceedings, appellate proceedings, or both; 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 for that representation, which may be graduated according to the degree of seriousness of the offense and whether representation will be provided in trial court proceedings, appellate proceedings, or both; 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 4. Article 34.01, Code of Criminal Procedure, is amended to read as follows:

Art. 34.01. SPECIAL VENIRE. A "special venire" is a writ issued in a capital case by order of the district court, commanding the sheriff to summon either verbally or by mail such a number of persons, not less than 50, as the court may order, to appear before the court on a day named in the writ from whom the jury for the trial of such case is to be selected. Where as many as one hundred jurors have been summoned in such county for regular service for the week in which such capital case is set for trial, the judge of the court having jurisdiction of a capital case in which a motion for a special venire has been made, shall grant or refuse such motion for a special venire, and upon such refusal require the case to be tried by regular jurors summoned for service in such county for the week in which such capital case is set for trial and such additional talesmen as may be summoned by the sheriff upon order of the court as provided in Article 34.02 of this Code[, but the clerk of such court shall furnish the defendant or his counsel a list of the persons summoned as provided in Article 34.04].

SECTION 5. 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 6. 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 the juror [he] is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the defendant; and

3. That the juror [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 7. 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 8. 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 the party [him] by the clerk.

SECTION 9. 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, the clerk [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 10. Article 36.29(a), Code of Criminal Procedure, is amended to read as follows:

(a) Not less than twelve jurors can render and return a verdict in a felony case. It must be concurred in by each juror and signed by the foreman. After [Except as provided in Subsection (b), however, after] the trial of any felony case begins and a juror dies or, as determined by the judge, becomes disabled from sitting at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict; but when the verdict shall be rendered by less than the whole number, it shall be signed by every member of the jury concurring in it.

SECTION 11. 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 12. Section 1, Article 42.01, Code of Criminal Procedure, as effective January 1, 2019, 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 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 Article 42A.054(c) or (d);

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

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

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, 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 Subchapter F, Chapter 42A, 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 66.152(a)(2), if that number has been assigned at the time of the judgment; and

29. The incident number required by Article 66.152(a)(4), if that number has been assigned at the time of the judgment.

SECTION 13. Section 557.012(b), Government Code, is amended to read as follows:

(b) An offense under this section is punishable by[:

[(1) death; or

[(2)] confinement in the Texas Department of Criminal Justice for:

(1) [(A)] life; or

(2) [(B)] a term of not less than two years.

SECTION 14. The following provisions of the Code of Criminal Procedure are repealed:

(1) Article 34.04;

(2) Articles 35.13, 35.15(a), and 35.29(c);

(3) Article 36.29(b);

(4) Articles 37.071, 37.0711, and 37.072;

(5) Articles 38.43(i), (j), (k), (l), and (m);

(6) Article 42.04; and

(7) Article 46.05.

SECTION 15. 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) does not affect a final conviction that exists on the effective date of this Act.

SECTION 16. 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, 2019.