81R4889 KCR-D
By: Farrar H.B. No. 682
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 [institutional division] 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 institutional
division for 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] 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 the
requirements under Article 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 of the victim and the permanent
mailing address of the victim at the time of the judgment; or
(B) if the court determines that the inclusion of
the victim's name and address in the judgment is not in the best
interest of the victim, the name and address of a person or agency
that will accept and forward restitution payments to the victim;
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 Section 60.052(a)(2), if that number has been assigned
at the time of the judgment; and
29. The incident number required by 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 [institutional division of
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 [institutional division of the] Texas Department of Criminal
Justice and he gives notice of appeal, he shall be transferred to
the institutional division 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. Articles 1.13(b), 11.071, 26.052(a)-(e) and
(i)-(m), 34.04, 35.13, 35.15(a), 36.29(b), 37.071, 42.04,
43.14-43.25, 44.251, and 44.29(c), Code of Criminal Procedure, are
repealed.
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, 2009.