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From the 2005 Regular Session of the Texas Legislature

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	S.B. No. 60



AN ACT



relating to the representation
of certain defendants in capital cases and to the punishment
for a capital felony or other felony punishable by
a term of imprisonment exceeding 99 years.


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 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.  Subsection (c),
Section 8.07, Penal Code, is amended to read as follows:


(c)  No person may, in any
case, be punished by death for an offense committed
while the person he was younger
than 18 17 years.


SECTION 3.  Section 508.046,
Government Code, is amended to read as follows:


Sec. 508.046.  EXTRAORDINARY
VOTE REQUIRED.  To release on parole an inmate who
was convicted of a capital felony or
an offense under Section 21.11(a)(1) or 22.021, Penal
Code, or who is required under Section 508.145(c) to
serve 35 calendar years before becoming eligible for
release on parole, all members of the board must vote
on the release on parole of the inmate, and at least
two-thirds of the members must vote in favor of the
release on parole.  A member of the board may not vote
on the release unless the member first receives a copy
of a written report from the department on the probability
that the inmate would commit an offense after being
released on parole.


SECTION 4.  Subsections (a)
and (c), Section 508.145, Government Code, are amended
to read as follows:


(a)  An inmate under sentence
of death or serving a sentence of life imprisonment
without parole is not eligible for release on parole.


(c)  An inmate serving a life
sentence under Section 12.42(c)(2), Penal Code, is
not eligible for release on parole until the actual
calendar time the inmate has served, without consideration
of good conduct time, equals 35 calendar years.


SECTION 5.  Subsections (a)
and (f), Section 508.146, Government Code, are amended
to read as follows:


(a)  An inmate, other than
an inmate who is serving a sentence of death or
life without parole or an inmate who has a reportable
conviction or adjudication under Chapter 62, Code of
Criminal Procedure, may be released on medically recommended
intensive supervision on a date designated by a parole
panel described by Subsection (e), except that an inmate
with an instant offense that is an offense described
in Section 3g, Article 42.12, Code of Criminal Procedure,
may only be considered if a medical condition of terminal
illness or long-term care has been diagnosed, if:


(1)  the Texas Correctional
Office on Offenders with Medical or Mental Impairments,
in cooperation with the Correctional Managed Health
Care Committee, identifies the inmate as being elderly,
physically disabled, mentally ill, terminally ill,
or mentally retarded or having a condition requiring
long-term care;


(2)  the parole panel determines
that, based on the inmate's condition and a medical
evaluation, the inmate does not constitute a threat
to public safety; and


(3)  the Texas Correctional
Office on Offenders with Medical or Mental Impairments,
in cooperation with the pardons and paroles division,
has prepared for the inmate a medically recommended
intensive supervision plan that requires the inmate
to submit to electronic monitoring, places the inmate
on super-intensive supervision, or otherwise ensures
appropriate supervision of the inmate.


(f)  An inmate who is not
a citizen of the United States, as defined by federal
law, who is not under a sentence of death or life
without parole, and who does not have a reportable
conviction or adjudication under Chapter 62, Code of
Criminal Procedure, or an instant offense described
in Section 3g, Article 42.12, Code of Criminal Procedure,
may be released to immigration authorities pending
deportation on a date designated by a parole panel
described by Subsection (e) if the parole panel determines
that on release the inmate would be deported to another
country and that the inmate does not constitute a threat
to public safety in the other country or this country
and is unlikely to reenter this country illegally.


SECTION 6.  Section 1, Article
37.071, Code of Criminal Procedure, is amended to read
as follows:


Sec. 1.  If a defendant is
found guilty in a capital felony case in which the
state does not seek the death penalty, the judge shall
sentence the defendant to life imprisonment without
parole.


SECTION 7.  Subdivision (1),
Subsection (a), Section 2, Article 37.071, Code of
Criminal Procedure, is amended to read as follows:


(1)  If a defendant is tried
for a capital offense in which the state seeks the
death penalty, on a finding that the defendant is guilty
of a capital offense, the court shall conduct a separate
sentencing proceeding to determine whether the defendant
shall be sentenced to death or life imprisonment without
parole.  The proceeding shall be conducted in the
trial court and, except as provided by Article 44.29(c)
of this code, before the trial jury as soon as practicable.
 In the proceeding, evidence may be presented by the
state and the defendant or the defendant's counsel
as to any matter that the court deems relevant to sentence,
including evidence of the defendant's background or
character or the circumstances of the offense that
mitigates against the imposition of the death penalty.
 This subdivision shall not be construed to authorize
the introduction of any evidence secured in violation
of the Constitution of the United States or of the
State of Texas.  The state and the defendant or the
defendant's counsel shall be permitted to present argument
for or against sentence of death.  The court, the attorney
representing the state, the defendant, or the defendant's
counsel may not inform a juror or a prospective juror
of the effect of a failure of a jury to agree on issues
submitted under Subsection (c) or (e) of this
article.


SECTION 8.  Subsection (e),
Section 2, Article 37.071, Code of Criminal Procedure,
is amended to read as follows:


(e)(1)  The court shall instruct
the jury that if the jury returns an affirmative finding
to each issue submitted under Subsection (b) of
this article, it shall answer the following
issue:


Whether, taking into consideration
all of the evidence, including the circumstances of
the offense, the defendant's character and background,
and the personal moral culpability of the defendant,
there is a sufficient mitigating circumstance or circumstances
to warrant that a sentence of life imprisonment without
parole rather than a death sentence be imposed.


(2)  The court, on
the written request of the attorney representing the
defendant, shall:


(A)  instruct the jury that
if the jury answers that a circumstance or circumstances
warrant that a sentence of life imprisonment without
parole rather than a death sentence be imposed,
the court will sentence the defendant to imprisonment
in the institutional division of the Texas Department
of Criminal Justice for life without parole;
and


(B)  charge the jury that
a defendant sentenced to confinement for life without
parole under this article is ineligible for release
from the department on parole. in writing
as follows:


"Under the law applicable
in this case, if the defendant is sentenced to imprisonment
in the institutional division of the Texas Department
of Criminal Justice for life, the defendant will become
eligible for release on parole, but not until the actual
time served by the defendant equals 40 years, without
consideration of any good conduct time.  It cannot
accurately be predicted how the parole laws might be
applied to this defendant if the defendant is sentenced
to a term of imprisonment for life because the application
of those laws will depend on decisions made by prison
and parole authorities, but eligibility for parole
does not guarantee that parole will be granted."


SECTION 9.  Subsection (g),
Section 2, Article 37.071, Code of Criminal Procedure,
is amended to read as follows:


(g)  If the jury returns an
affirmative finding on each issue submitted under Subsection
(b) of this article and a negative
finding on an issue submitted under Subsection (e)(1)
of this article, the court shall
sentence the defendant to death.  If the jury returns
a negative finding on any issue submitted under Subsection
(b) of this article or an affirmative
finding on an issue submitted under Subsection (e)(1)
of this article or is unable to
answer any issue submitted under Subsection (b) or
(e) of this article, the court shall
sentence the defendant to confinement in the institutional
division of the Texas Department of Criminal Justice
for life imprisonment without parole.


SECTION 10.  Subsections (a)
and (b), Article 44.251, Code of Criminal Procedure,
are amended to read as follows:


(a)  The court of criminal
appeals shall reform a sentence of death to a sentence
of confinement in the institutional division of the
Texas Department of Criminal Justice for life without
parole if the court finds that there is legally
insufficient evidence to support an affirmative answer
to an issue submitted to the jury under Section 2(b),
Article 37.071, or Section 3(b), Article 37.0711,
of this code or a negative answer to an issue submitted
to a jury under Section 2(e), Article 37.071, or Section
3(e), Article 37.0711, of this code.


(b)  The court of criminal
appeals shall reform a sentence of death to a sentence
of confinement in the institutional division of the
Texas Department of Criminal Justice for life without
parole if:


(1)  the court finds reversible
error that affects the punishment stage of the trial
other than a finding of insufficient evidence under
Subsection (a) of this article; and


(2)  within 30 days after
the date on which the opinion is handed down, the date
the court disposes of a timely request for rehearing,
or the date that the United States Supreme Court disposes
of a timely filed petition for writ of certiorari,
whichever date is later, the prosecuting attorney files
a motion requesting that the sentence be reformed to
confinement for life without parole.


SECTION 11.  Chapter 44, Code
of Criminal Procedure, is amended by adding Article
44.2511 to read as follows:


Art. 44.2511.  REFORMATION
OF SENTENCE IN CAPITAL CASE FOR OFFENSE COMMITTED BEFORE
SEPTEMBER 1, 1991.  (a)  This article applies to the
reformation of a sentence of death in a capital case
for an offense committed before September 1, 1991.
 For purposes of this subsection, an offense is committed
before September 1, 1991, if every element of the offense
occurred before that date.


(b)  The court of criminal
appeals shall reform a sentence of death to a sentence
of confinement in the institutional division of the
Texas Department of Criminal Justice for life if the
court finds that there is legally insufficient evidence
to support an affirmative answer to an issue submitted
to the jury under Section 3(b), Article 37.0711.


(c)  The court of criminal
appeals shall reform a sentence of death to a sentence
of confinement in the institutional division of the
Texas Department of Criminal Justice for life if:


(1)  the court finds reversible
error that affects the punishment stage of the trial
other than a finding of insufficient evidence under
Subsection (b); and


(2)  within 30 days after
the date on which the opinion is handed down, the date
the court disposes of a timely request for rehearing,
or the date that the United States Supreme Court disposes
of a timely filed petition for writ of certiorari,
whichever date is later, the prosecuting attorney files
a motion requesting that the sentence be reformed to
confinement for life.


(d)  If the court of criminal
appeals finds reversible error that affects the punishment
stage of the trial only, as described by Subsection
(c), and the prosecuting attorney does not file a motion
for reformation of sentence in the period described
by that subsection, the defendant shall receive a new
sentencing trial in the manner required by Article
44.29(c).


SECTION 12.  Subsection (b),
Section 508.145, Government Code, is repealed.


SECTION 13.  Subsection (d),
Section 2, Article 11.071, Code of Criminal Procedure,
is amended to read as follows:


(d)  The court of criminal
appeals shall adopt rules for the appointment of attorneys
as counsel under this section and the convicting court
may appoint an attorney as counsel under this section
only if the appointment is approved by the court of
criminal appeals in any manner provided by those rules.
 The rules must require that an attorney appointed
as lead counsel under this section not have been found
by a federal or state court to have rendered ineffective
assistance of counsel during the trial or appeal of
any capital case.


SECTION 14.  Subsection (d),
Article 26.052, Code of Criminal Procedure, is amended
to read as follows:


(d)(1)  The committee shall
adopt standards for the qualification of attorneys
to be appointed to represent indigent defendants in
capital cases in which the death penalty is sought.


(2)  The standards must require
that a trial an attorney
appointed as lead counsel to a death penalty
case or an attorney appointed as lead counsel in
the direct appeal of a death penalty case:


(A)  be a member of the State
Bar of Texas;


(B)  exhibit proficiency and
commitment to providing quality representation to defendants
in death penalty cases;


(C)  have not been found
by a federal or state court to have rendered ineffective
assistance of counsel during the trial or appeal of
any capital case;


(D)  have at least
five years of experience in criminal litigation;


(E) (D)
 have tried to a verdict as lead defense counsel a
significant number of felony cases, including homicide
trials and other trials for offenses punishable as
second or first degree felonies or capital felonies;


(F) (E)
 have trial experience in:


(i)  the use of and challenges
to mental health or forensic expert witnesses; and


(ii)  investigating and presenting
mitigating evidence at the penalty phase of a death
penalty trial; and


(G) (F)
 have participated in continuing legal education courses
or other training relating to criminal defense in death
penalty cases.


(3)  The committee shall prominently
post the standards in each district clerk's office
in the region with a list of attorneys qualified for
appointment.


(4)  Not later than the second
anniversary of the date an attorney is placed on the
list of attorneys qualified for appointment in death
penalty cases and each year following the second anniversary,
the attorney must present proof to the committee that
the attorney has successfully completed the minimum
continuing legal education requirements of the State
Bar of Texas, including a course or other form of training
relating to the defense of death penalty cases.  The
committee shall remove the attorney's name from the
list of qualified attorneys if the attorney fails to
provide the committee with proof of completion of the
continuing legal education requirements.


SECTION 15.  The court of criminal
appeals shall amend rules adopted under Subsection
(d), Section 2, Article 11.071, Code of Criminal Procedure,
as necessary to comply with that subsection, as amended
by this Act, not later than January 1, 2006.


SECTION 16.  A local selection
committee shall amend standards previously adopted
by the committee to conform with the requirements of
Subsection (d), Article 26.052, Code of Criminal Procedure,
as amended by this Act, not later than the 75th day
after the effective date of this Act.  An attorney
appointed to a death penalty case on or after the 75th
day after the effective date of this Act must meet
the standards adopted in conformity with the amended
Subsection (d), Article 26.052.  An attorney appointed
to a death penalty case before the 75th day after the
effective date of this Act is covered by the law in
effect when the attorney was appointed, and the former
law is continued in effect for that purpose.


SECTION 17.  (a)  The change
in law made by this Act applies only to an offense
committed on or after the effective date of this Act.
 For purposes of this section, an offense is committed
before the effective date of this Act if any element
of the offense occurs before the effective date.


(b)  An offense committed
before the effective date of this Act is covered by
the law in effect when the offense was committed, and
the former law is continued in effect for that purpose.


SECTION 18.  This Act takes
effect September 1, 2005.





______________________________   ______________________________



President
of the Senate             Speaker of the House



I hereby certify that S.B.
No. 60 passed the Senate on April 14, 2005, by the
following vote:  Yeas 26, Nays 5; and that the Senate
concurred in House amendments on May 28, 2005, by the
following vote:  Yeas 26, Nays 5.




______________________________


    Secretary of the
Senate




I hereby certify that S.B.
No. 60 passed the House, with amendments, on May 25,
2005, by the following vote:  Yeas 121, Nays 22, two
present not voting.




______________________________


    Chief Clerk of
the House




Approved:


______________________________


             Date


______________________________


           Governor