Texas 2009 - 81st Regular

Texas House Bill HB682 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R4889 KCR-D
2	2	By: Farrar H.B. No. 682
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to abolishing the death penalty.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 12.31, Penal Code, is amended to read as
10	10	follows:
11	11	Sec. 12.31. CAPITAL FELONY. (a) An individual adjudged
12	12	guilty of a capital felony [in a case in which the state seeks the
13	13	death penalty] shall be punished by imprisonment in the Texas
14	14	Department of Criminal Justice [institutional division] for life
15	15	without parole [or by death. An individual adjudged guilty of a
16	16	capital felony in a case in which the state does not seek the death
17	17	penalty shall be punished by imprisonment in the institutional
18	18	division for life without parole].
19	19	(b) In a capital felony trial [in which the state seeks the
20	20	death penalty, prospective jurors shall be informed that a sentence
21	21	of life imprisonment without parole or death is mandatory on
22	22	conviction of a capital felony. In a capital felony trial in which
23	23	the state does not seek the death penalty], prospective jurors
24	24	shall be informed that [the state is not seeking the death penalty
25	25	and that] a sentence of life imprisonment without parole is
26	26	mandatory on conviction of the capital felony.
27	27	SECTION 2. Article 1.13(a), Code of Criminal Procedure, is
28	28	amended to read as follows:
29	29	(a) The defendant in a criminal prosecution for any offense
30	30	[other than a capital felony case in which the State notifies the
31	31	court and the defendant that it will seek the death penalty] shall
32	32	have the right, upon entering a plea, to waive the right of trial by
33	33	jury, conditioned, however, that such waiver must be made in person
34	34	by the defendant in writing in open court with the consent and
35	35	approval of the court, and the attorney representing the State. The
36	36	consent and approval by the court shall be entered of record on the
37	37	minutes of the court, and the consent and approval of the attorney
38	38	representing the State shall be in writing, signed by him, and filed
39	39	in the papers of the cause before the defendant enters his plea.
40	40	SECTION 3. Article 4.03, Code of Criminal Procedure, is
41	41	amended to read as follows:
42	42	Art. 4.03. COURTS OF APPEALS. The Courts of Appeals shall
43	43	have appellate jurisdiction coextensive with the limits of their
44	44	respective districts in all criminal cases [except those in which
45	45	the death penalty has been assessed]. This article may [Article
46	46	shall] not be so construed as to embrace any case which has been
47	47	appealed from any inferior court to the county court, the county
48	48	criminal court, or county court at law, in which the fine imposed by
49	49	the county court, the county criminal court or county court at law
50	50	does not exceed one hundred dollars, unless the sole issue is the
51	51	constitutionality of the statute or ordinance on which the
52	52	conviction is based.
53	53	SECTION 4. Section 2, Article 4.04, Code of Criminal
54	54	Procedure, is amended to read as follows:
55	55	Sec. 2. The Court of Criminal Appeals shall have, and is
56	56	hereby given, final appellate and review jurisdiction in criminal
57	57	cases coextensive with the limits of the state, and its
58	58	determinations shall be final. [The appeal of all cases in which
59	59	the death penalty has been assessed shall be to the Court of
60	60	Criminal Appeals.] In addition, the Court of Criminal Appeals may,
61	61	on its own motion, with or without a petition for such discretionary
62	62	review being filed by one of the parties, review any decision of a
63	63	court of appeals in a criminal case. Discretionary review by the
64	64	Court of Criminal Appeals is not a matter of right, but of sound
65	65	judicial discretion.
66	66	SECTION 5. The heading to Article 11.07, Code of Criminal
67	67	Procedure, is amended to read as follows:
68	68	Art. 11.07. PROCEDURE AFTER CONVICTION [WITHOUT DEATH
69	69	PENALTY].
70	70	SECTION 6. Section 2, Article 11.07, Code of Criminal
71	71	Procedure, is amended to read as follows:
72	72	Sec. 2. After indictment found in any felony case[, other
73	73	than a case in which the death penalty is imposed,] and before
74	74	conviction, the writ must be made returnable in the county where the
75	75	offense has been committed.
76	76	SECTION 7. Section 3(b), Article 11.07, Code of Criminal
77	77	Procedure, is amended to read as follows:
78	78	(b) An application for writ of habeas corpus filed after
79	79	final conviction in a felony case[, other than a case in which the
80	80	death penalty is imposed,] must be filed with the clerk of the court
81	81	in which the conviction being challenged was obtained, and the
82	82	clerk shall assign the application to that court. When the
83	83	application is received by that court, a writ of habeas corpus,
84	84	returnable to the Court of Criminal Appeals, shall issue by
85	85	operation of law. The clerk of that court shall make appropriate
86	86	notation thereof, assign to the case a file number (ancillary to
87	87	that of the conviction being challenged), and forward a copy of the
88	88	application by certified mail, return receipt requested, or by
89	89	personal service to the attorney representing the state in that
90	90	court, who shall answer the application not later than the 15th day
91	91	after the date the copy of the application is received. Matters
92	92	alleged in the application not admitted by the state are deemed
93	93	denied.
94	94	SECTION 8. Articles 26.04(b) and (g), Code of Criminal
95	95	Procedure, are amended to read as follows:
96	96	(b) Procedures adopted under Subsection (a) shall:
97	97	(1) authorize only the judges of the county courts,
98	98	statutory county courts, and district courts trying criminal cases
99	99	in the county, or the judges' designee, to appoint counsel for
100	100	indigent defendants in the county;
101	101	(2) apply to each appointment of counsel made by a
102	102	judge or the judges' designee in the county;
103	103	(3) ensure that each indigent defendant in the county
104	104	who is charged with a misdemeanor punishable by confinement or with
105	105	a felony and who appears in court without counsel has an opportunity
106	106	to confer with appointed counsel before the commencement of
107	107	judicial proceedings;
108	108	(4) [require appointments for defendants in capital
109	109	cases in which the death penalty is sought to comply with the
110	110	requirements under Article 26.052;
111	111	[(5)] ensure that each attorney appointed from a
112	112	public appointment list to represent an indigent defendant perform
113	113	the attorney's duty owed to the defendant in accordance with the
114	114	adopted procedures, the requirements of this code, and applicable
115	115	rules of ethics; and
116	116	(5) [(6)] ensure that appointments are allocated
117	117	among qualified attorneys in a manner that is fair, neutral, and
118	118	nondiscriminatory.
119	119	(g) A countywide alternative program for appointing counsel
120	120	for indigent defendants in criminal cases is established by a
121	121	formal action in which two-thirds of the judges of the courts
122	122	designated under this subsection vote to establish the alternative
123	123	program. An alternative program for appointing counsel in
124	124	misdemeanor and felony cases may be established in the manner
125	125	provided by this subsection by the judges of the county courts,
126	126	statutory county courts, and district courts trying criminal cases
127	127	in the county. An alternative program for appointing counsel in
128	128	misdemeanor cases may be established in the manner provided by this
129	129	subsection by the judges of the county courts and statutory county
130	130	courts trying criminal cases in the county. An alternative program
131	131	for appointing counsel in felony cases may be established in the
132	132	manner provided by this subsection by the judges of the district
133	133	courts trying criminal cases in the county. In a county in which an
134	134	alternative program is established:
135	135	(1) the alternative program may:
136	136	(A) use a single method for appointing counsel or
137	137	a combination of methods; and
138	138	(B) use a multicounty appointment list using a
139	139	system of rotation; and
140	140	(2) the procedures adopted under Subsection (a) must
141	141	ensure that:
142	142	(A) attorneys appointed using the alternative
143	143	program to represent defendants in misdemeanor cases punishable by
144	144	confinement:
145	145	(i) meet specified objective
146	146	qualifications, which may be graduated according to the degree of
147	147	seriousness of the offense, for providing representation in
148	148	misdemeanor cases punishable by confinement; and
149	149	(ii) are approved by a majority of the
150	150	judges of the county courts and statutory county courts trying
151	151	misdemeanor cases in the county;
152	152	(B) attorneys appointed using the alternative
153	153	program to represent defendants in felony cases:
154	154	(i) meet specified objective
155	155	qualifications, which may be graduated according to the degree of
156	156	seriousness of the offense, for providing representation in felony
157	157	cases; and
158	158	(ii) are approved by a majority of the
159	159	judges of the district courts trying felony cases in the county; and
160	160	(C) [appointments for defendants in capital
161	161	cases in which the death penalty is sought comply with the
162	162	requirements of Article 26.052; and
163	163	[(D)] appointments are reasonably and
164	164	impartially allocated among qualified attorneys.
165	165	SECTION 9. Article 26.05(d), Code of Criminal Procedure, is
166	166	amended to read as follows:
167	167	(d) A counsel in a criminal [noncapital] case, other than an
168	168	attorney with a public defender, appointed to represent a defendant
169	169	under this code shall be reimbursed for reasonable and necessary
170	170	expenses, including expenses for investigation and for mental
171	171	health and other experts. Expenses incurred with prior court
172	172	approval shall be reimbursed in the [same] manner provided for
173	173	[capital cases] by Articles 26.052(f) and (g), and expenses
174	174	incurred without prior court approval shall be reimbursed in the
175	175	manner provided for [capital cases] by Article 26.052(h).
176	176	SECTION 10. The heading to Article 26.052, Code of Criminal
177	177	Procedure, is amended to read as follows:
178	178	Art. 26.052. [APPOINTMENT OF COUNSEL IN DEATH PENALTY
179	179	CASE;] REIMBURSEMENT OF [INVESTIGATIVE] EXPENSES INCURRED BY
180	180	APPOINTED COUNSEL.
181	181	SECTION 11. Section 3, Article 31.08, Code of Criminal
182	182	Procedure, is amended to read as follows:
183	183	Sec. 3. An [Except for the review of a death sentence under
184	184	Section 2(h), Article 37.071, or under Section 2(h), Article
185	185	37.072, an] appeal taken in a cause returned to the original county
186	186	under this article must be docketed in the appellate district in
187	187	which the county of original venue is located.
188	188	SECTION 12. Article 35.15(b), Code of Criminal Procedure,
189	189	is amended to read as follows:
190	190	(b) In [non-capital] felony cases [and in capital cases in
191	191	which the State does not seek the death penalty], the State and
192	192	defendant shall each be entitled to ten peremptory challenges. If
193	193	two or more defendants are tried together each defendant shall be
194	194	entitled to six peremptory challenges and the State to six for each
195	195	defendant.
196	196	SECTION 13. Article 35.16(b), Code of Criminal Procedure,
197	197	is amended to read as follows:
198	198	(b) A challenge for cause may be made by the State for any of
199	199	the following reasons:
200	200	1. That the juror has conscientious scruples in regard
201	201	to the imposition [infliction] of a sentence of imprisonment for
202	202	life without parole [the punishment of death for crime,] in a
203	203	capital case[, where the State is seeking the death penalty];
204	204	2. That he is related within the third degree of
205	205	consanguinity or affinity, as determined under Chapter 573,
206	206	Government Code, to the defendant; and
207	207	3. That he has a bias or prejudice against any phase of
208	208	the law upon which the State is entitled to rely for conviction or
209	209	punishment.
210	210	SECTION 14. Article 35.17, Code of Criminal Procedure, is
211	211	amended to read as follows:
212	212	Art. 35.17. VOIR DIRE EXAMINATION. [1.] When the court in
213	213	its discretion so directs, [except as provided in Section 2,] the
214	214	state and defendant shall conduct the voir dire examination of
215	215	prospective jurors in the presence of the entire panel.
216	216	[2. In a capital felony case in which the State seeks the
217	217	death penalty, the court shall propound to the entire panel of
218	218	prospective jurors questions concerning the principles, as
219	219	applicable to the case on trial, of reasonable doubt, burden of
220	220	proof, return of indictment by grand jury, presumption of
221	221	innocence, and opinion. Then, on demand of the State or defendant,
222	222	either is entitled to examine each juror on voir dire individually
223	223	and apart from the entire panel, and may further question the juror
224	224	on the principles propounded by the court.]
225	225	SECTION 15. Article 35.25, Code of Criminal Procedure, is
226	226	amended to read as follows:
227	227	Art. 35.25. MAKING PEREMPTORY CHALLENGE. The [In
228	228	non-capital cases and in capital cases in which the State's
229	229	attorney has announced that he will not qualify the jury for, or
230	230	seek the death penalty, the] party desiring to challenge any juror
231	231	peremptorily shall strike the name of such juror from the list
232	232	furnished him by the clerk.
233	233	SECTION 16. Article 35.26, Code of Criminal Procedure, is
234	234	amended to read as follows:
235	235	Art. 35.26. LISTS RETURNED TO CLERK. [(a)] When the parties
236	236	have made or declined to make their peremptory challenges, they
237	237	shall deliver their lists to the clerk. The [Except as provided in
238	238	Subsection (b) of this section, the] clerk shall, if the case be in
239	239	the district court, call off the first twelve names on the lists
240	240	that have not been stricken. If the case be in the county court, he
241	241	shall call off the first six names on the lists that have not been
242	242	stricken. Those whose names are called shall be the jury.
243	243	[(b) In a capital case in which the state seeks the death
244	244	penalty, the court may direct that two alternate jurors be selected
245	245	and that the first fourteen names not stricken be called off by the
246	246	clerk. The last two names to be called are the alternate jurors.]
247	247	SECTION 17. Section 2(b), Article 37.07, Code of Criminal
248	248	Procedure, is amended to read as follows:
249	249	(b) If [Except as provided by Article 37.071 or 37.072, if]
250	250	a finding of guilty is returned, it shall then be the responsibility
251	251	of the judge to assess the punishment applicable to the offense;
252	252	provided, however, that (1) in any criminal action where the jury
253	253	may recommend community supervision and the defendant filed his
254	254	sworn motion for community supervision before the trial began, and
255	255	(2) in other cases where the defendant so elects in writing before
256	256	the commencement of the voir dire examination of the jury panel, the
257	257	punishment shall be assessed by the same jury, except as provided in
258	258	Section 3(c) of this article and in Article 44.29. If a finding of
259	259	guilty is returned, the defendant may, with the consent of the
260	260	attorney for the state, change his election of one who assesses the
261	261	punishment.
262	262	SECTION 18. Section 1, Article 42.01, Code of Criminal
263	263	Procedure, is amended to read as follows:
264	264	Sec. 1. A judgment is the written declaration of the court
265	265	signed by the trial judge and entered of record showing the
266	266	conviction or acquittal of the defendant. The sentence served
267	267	shall be based on the information contained in the judgment. The
268	268	judgment shall reflect:
269	269	1. The title and number of the case;
270	270	2. That the case was called and the parties appeared,
271	271	naming the attorney for the state, the defendant, and the attorney
272	272	for the defendant, or, where a defendant is not represented by
273	273	counsel, that the defendant knowingly, intelligently, and
274	274	voluntarily waived the right to representation by counsel;
275	275	3. The plea or pleas of the defendant to the offense
276	276	charged;
277	277	4. Whether the case was tried before a jury or a jury
278	278	was waived;
279	279	5. The submission of the evidence, if any;
280	280	6. In cases tried before a jury that the jury was
281	281	charged by the court;
282	282	7. The verdict or verdicts of the jury or the finding
283	283	or findings of the court;
284	284	8. In the event of a conviction that the defendant is
285	285	adjudged guilty of the offense as found by the verdict of the jury
286	286	or the finding of the court, and that the defendant be punished in
287	287	accordance with the jury's verdict or the court's finding as to the
288	288	proper punishment;
289	289	9. In the event of conviction where [death or] any
290	290	punishment is assessed that the defendant be sentenced to [death,]
291	291	a term of confinement or community supervision, or to pay a fine, as
292	292	the case may be;
293	293	10. In the event of conviction where the imposition of
294	294	sentence is suspended and the defendant is placed on community
295	295	supervision, setting forth the punishment assessed, the length of
296	296	community supervision, and the conditions of community
297	297	supervision;
298	298	11. In the event of acquittal that the defendant be
299	299	discharged;
300	300	12. The county and court in which the case was tried
301	301	and, if there was a change of venue in the case, the name of the
302	302	county in which the prosecution was originated;
303	303	13. The offense or offenses for which the defendant
304	304	was convicted;
305	305	14. The date of the offense or offenses and degree of
306	306	offense for which the defendant was convicted;
307	307	15. The term of sentence;
308	308	16. The date judgment is entered;
309	309	17. The date sentence is imposed;
310	310	18. The date sentence is to commence and any credit for
311	311	time served;
312	312	19. The terms of any order entered pursuant to Article
313	313	42.08 of this code that the defendant's sentence is to run
314	314	cumulatively or concurrently with another sentence or sentences;
315	315	20. The terms of any plea bargain;
316	316	21. Affirmative findings entered pursuant to
317	317	Subdivision (2) of Subsection (a) of Section 3g of Article 42.12 of
318	318	this code;
319	319	22. The terms of any fee payment ordered under Article
320	320	42.151 of this code;
321	321	23. The defendant's thumbprint taken in accordance
322	322	with Article 38.33 of this code;
323	323	24. In the event that the judge orders the defendant to
324	324	repay a reward or part of a reward under Articles 37.073 and 42.152
325	325	of this code, a statement of the amount of the payment or payments
326	326	required to be made;
327	327	25. In the event that the court orders restitution to
328	328	be paid to the victim, a statement of the amount of restitution
329	329	ordered and:
330	330	(A) the name of the victim and the permanent
331	331	mailing address of the victim at the time of the judgment; or
332	332	(B) if the court determines that the inclusion of
333	333	the victim's name and address in the judgment is not in the best
334	334	interest of the victim, the name and address of a person or agency
335	335	that will accept and forward restitution payments to the victim;
336	336	26. In the event that a presentence investigation is
337	337	required by Section 9(a), (b), (h), or (i), Article 42.12 of this
338	338	code, a statement that the presentence investigation was done
339	339	according to the applicable provision;
340	340	27. In the event of conviction of an offense for which
341	341	registration as a sex offender is required under Chapter 62, a
342	342	statement that the registration requirement of that chapter applies
343	343	to the defendant and a statement of the age of the victim of the
344	344	offense;
345	345	28. The defendant's state identification number
346	346	required by Section 60.052(a)(2), if that number has been assigned
347	347	at the time of the judgment; and
348	348	29. The incident number required by Section
349	349	60.052(a)(4), if that number has been assigned at the time of the
350	350	judgment.
351	351	SECTION 19. Sections 1 and 3, Article 42.09, Code of
352	352	Criminal Procedure, are amended to read as follows:
353	353	Sec. 1. Except as provided in Sections 2 and 3, a defendant
354	354	shall be delivered to a jail or to the [institutional division of
355	355	the] Texas Department of Criminal Justice when his sentence is
356	356	pronounced[, or his sentence to death is announced,] by the court.
357	357	The defendant's sentence begins to run on the day it is pronounced,
358	358	but with all credits, if any, allowed by Article 42.03.
359	359	Sec. 3. If a defendant is convicted of a felony and
360	360	sentenced to [death,] life[,] or a term of more than ten years in
361	361	the [institutional division of the] Texas Department of Criminal
362	362	Justice and he gives notice of appeal, he shall be transferred to
363	363	the institutional division on a commitment pending a mandate from
364	364	the court of appeals or the Court of Criminal Appeals.
365	365	SECTION 20. Article 64.05, Code of Criminal Procedure, is
366	366	amended to read as follows:
367	367	Art. 64.05. APPEALS. An appeal under this chapter is to a
368	368	court of appeals in the same manner as an appeal of any other
369	369	criminal matter[, except that if the convicted person was convicted
370	370	in a capital case and was sentenced to death, the appeal is a direct
371	371	appeal to the court of criminal appeals].
372	372	SECTION 21. Articles 1.13(b), 11.071, 26.052(a)-(e) and
373	373	(i)-(m), 34.04, 35.13, 35.15(a), 36.29(b), 37.071, 42.04,
374	374	43.14-43.25, 44.251, and 44.29(c), Code of Criminal Procedure, are
375	375	repealed.
376	376	SECTION 22. The change in law made by this Act applies only
377	377	to the punishment for an offense under Section 19.03, Penal Code, if
378	378	the indictment in the case is filed on or after the effective date
379	379	of this Act. If the indictment in the case is filed before the
380	380	effective date of this Act, the punishment in the case is governed
381	381	by the law in effect when the offense was committed, and the former
382	382	law is continued in effect for that purpose.
383	383	SECTION 23. This Act takes effect September 1, 2009.