87R2666 JRR-D
By: Thompson of Harris H.B. No. 4308
A BILL TO BE ENTITLED
AN ACT
relating to prohibiting seeking or imposing the death penalty on
the basis of a person's race or ethnicity.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 11.071, Code of Criminal Procedure, is
amended by adding Section 10A to read as follows:
Sec. 10A. CLAIM INVOLVING RACE OR ETHNICITY.
Notwithstanding any other provision of this article, a defendant
who is raising a habeas corpus claim involving racial or ethnic bias
or discrimination or other impermissible use of race or ethnicity
in the defendant's case may present any evidence authorized for use
under Article 53.02, including statistical evidence derived from
this state or from the county where the defendant was convicted, in
support of the claim. The convicting court shall hold a hearing on
the claim in the same manner as a hearing is held under Article
53.02.
SECTION 2. Chapter 44, Code of Criminal Procedure, is
amended by adding Article 44.26 to read as follows:
Art. 44.26. CLAIM INVOLVING RACE OR ETHNICITY IN CAPITAL
CASE. (a) This article applies only to an appeal in a capital case
in which the defendant was sentenced to death.
(b) Notwithstanding any other law, a defendant who has
raised a claim involving racial or ethnic bias or discrimination or
other impermissible use of race or ethnicity in the defendant's
case may present any evidence authorized for use under Article
53.02, including statistical evidence derived from this state or
from the county where the defendant was convicted, in support of the
claim.
SECTION 3. Title 1, Code of Criminal Procedure, is amended
by adding Chapter 53 to read as follows:
CHAPTER 53. PROCEDURE IN CERTAIN DEATH PENALTY CASES
Art. 53.01. RACIAL OR ETHNIC DISCRIMINATION PROHIBITED. No
person shall be subject to or given a sentence of death or executed
under any judgment that was sought or obtained on the basis of race
or ethnicity.
Art. 53.02. PROOF OF RACIAL OR ETHNIC DISCRIMINATION;
PROCEDURE. (a) To be eligible to file a motion under this chapter,
the defendant must knowingly and voluntarily waive any objection to
the imposition of a sentence to life imprisonment without parole
based on any common law, statutory law, or provision of the federal
or state constitution that would otherwise require that the
defendant be eligible for parole. The waiver must be in writing,
signed by the defendant, and included in the motion seeking relief
under this article.
(b) If the court determines that a hearing is required under
Subsection (h), the court shall make an oral inquiry of the
defendant on the record to confirm the defendant's waiver to the
imposition of a sentence to life imprisonment without parole. If
the court grants relief under this article, the judgment must
include the finding that the defendant waived any objection to the
imposition of a sentence of life imprisonment without parole.
(c) The defendant has the burden of proving by a
preponderance of the evidence that race or ethnicity was a
significant factor in the decision to seek or impose the sentence of
death in the county at the time the death sentence was sought or
imposed. For the purposes of this article, "the time the death
sentence was sought or imposed" is the period from 10 years before
the date of the commission of the offense to the date that is two
years after the date the death sentence is imposed.
(d) The state may offer evidence in rebuttal of the
defendant's claims or evidence, including statistical evidence.
The court may consider evidence of the impact on the defendant's
trial of any program the purpose of which is to eliminate race or
ethnicity as a factor in seeking or imposing a sentence of death.
(e) Evidence to establish a finding that race or ethnicity
was a significant factor in the decision to seek or impose the
sentence of death in the county at the time the death sentence was
sought or imposed may include:
(1) statistical evidence derived from this state or
from the county where the defendant was sentenced to death; or
(2) other evidence specific to the defendant's case
showing that the race or ethnicity of the defendant was a
significant factor in the decision to seek or impose the sentence of
death, including:
(A) evidence showing that race or ethnicity was a
significant factor in the decision to exercise peremptory
challenges during jury selection; or
(B) evidence of discriminatory sentiments from
any participant in the trial, including a juror, the judge, or a
prosecutor.
(f) The evidence under Subsection (e)(2) may include sworn
testimony of an attorney, prosecutor, law enforcement officer,
judicial official, juror, or other person involved in the criminal
justice system. Testimony by a juror under this subsection must
comply with Rule 606(b), Texas Rules of Evidence.
(g) Statistical evidence alone is not sufficient to
establish that race or ethnicity was a significant factor in the
decision to seek or impose the sentence of death.
(h) A motion filed under this article must state with
particularity how the evidence supports a claim that race or
ethnicity was a significant factor in the decision to seek or impose
the sentence of death in the defendant's case in the county at the
time the death sentence was sought or imposed. The claim must be
raised by the defendant at the pretrial conference or hearing under
Article 28.01 or in any postconviction proceeding. If the court
finds that the defendant's motion fails to state a sufficient claim
under this article, the court shall dismiss the claim without an
evidentiary hearing. If the court finds that the defendant's
motion states a sufficient claim under this article, the court
shall set a hearing on the claim and may prescribe a time before the
hearing for each party to present a summary of the evidence the
party intends to introduce.
(i) If the court finds that race or ethnicity was a
significant factor in a decision to seek or impose the sentence of
death in the defendant's case at the time the death sentence was
sought or imposed, the court shall order that a death sentence not
be sought, or that the death sentence imposed by the judgment be
vacated and the defendant resentenced to life imprisonment without
the possibility of parole.
(j) Filing a motion under this article does not limit or
restrict the adjudication of any future constitutional claims made
by the defendant or limit or restrict the defendant's eligibility
for any other postconviction procedure authorized by this code,
including another action under this chapter. The provisions of
Article 28.01 prohibiting further adjudication of certain matters
not raised at a pretrial hearing do not apply to matters related to
a defendant's motion under this article.
SECTION 4. The change in law made by this Act applies to a
defendant alleged to have committed a capital offense regardless of
whether the alleged offense was committed before, on, or after the
effective date of this Act.
SECTION 5. This Act takes effect September 1, 2021.