Bill Text: TX HB246 | 2019-2020 | 86th Legislature | Introduced

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Bill Title: Relating to abolishing the death penalty.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Introduced - Dead) 2019-02-19 - Referred to Criminal Jurisprudence [HB246 Detail]

Download: Texas-2019-HB246-Introduced.html

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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.