Eckhardt’s bill abolishing the death penalty

The text as introduced · 3,158 words

89R3934 MEW-D

By: Eckhardt
S.B. No. 343

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

[ 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 100 [ 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 [ State ]

and defendant shall each be entitled to 10 [ ten ] peremptory

challenges. If two or more defendants are tried together each

defendant shall be entitled to six peremptory challenges and the

state [ 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 [ 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 [ 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 12 [ 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 12 [ 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 the

defendant's [ 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 the defendant's

[ his ] election of one who assesses the punishment.

SECTION 12. 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 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 and 35.15(a);

(3) Article 36.29(b);

(4) Articles 37.071, 37.0711, and 37.072;

(5) Articles 38.43(i), (j), (k), (l), and (m); and

(6) Article 42.04.

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, 2025.