Honorable Bob Hendricks                  Opinion No. H-13
Chairman, Committee on
Criminal Jurisprudence                   Re:   Regarding the Constitutionality
House of Representatives                       of House Bills 200 and 229
Austin. Texas 78711                            having to do with the death
                                               penalty.
pear   Mr.   Hendricks:

     You have reqested our opinion of the constitutionality of House
Bills 200 and 229 each of which would amend Article 1257, Vernon’s
Texas Penal Code and would provide the death penalty under certain
circumstances.

     House Bill 200 would provide that the punishment for murder with
malice aforethought “shall be death or imprisonment for We? ‘If .oaaeof
eight circumstances exists.     By subparagraph (c) it provides that,
if the jury should find the defendant guilty of murder with malice and
that the murder was committed under one of those eight circumstances,
the court “shall sentence the defendant to death unless the jury, after
hearing on the issue of punishment, recommends leniency, in which
event the court shall sentence the defendant to imprisonment for life. ”

     There are other aspects of House Bill 200 which are not necess-
arily material to this opinion.

     House Bill 229 would amend Article 1257, V. T. P. C., to pro-
vide that, except as provided in subsection (b) the punishment for
murder “shall be death or confinement in the penitentiary for life
or for any term of years not less than two.” Subsection (b) reads as
follows:

                     “The punishment for murder shall be death
                or confinement in the penitentiary for life if the
                person murdered a peace officer ai a fireman who
                was acting in the lawful discharge of an official
                duty and whom the person knew was a peace
                officer or a fireman. ”


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Honorable Bob Hendricks,    page 2 (H-13)




    The decision of the United States Supreme Court in Furman v.
Georgia, .408 U.S. 238,, 33 L. Ed. 2d 346 (1972). the Death Penalty
Case, was by a court divided five to four.   The court’s opinion,
rendered Per Curiam. merely recites that the imposition and
carrying out of the penalty in the three cases before it “constitutes
cruel and unusual punishment in violation of the Eighth and Fourteenth
Amendments. ”

    There were five separate concurring opinions.     One of the
grounds adopted in each concurring opinion for holding the statutes
in question there to be unconstitutional was that they vested in
juries the power to choose between death and a lesser punishment
without designating standads .by which the choice was to be made,
and, therefore, permitted the decision to be made arbitrarily.

    Each of the proposed bills, House Bill 200 and House Bill 229,
would appear to suffer from the same deficiency and it is our opinion
that both bills, if presented to the court which decided the Furman
case, would be held unconstitutional.    Some persons, commenting
on the Furman decision, have concluded that the Supreme Court
would uphold a death penalty statute only if it made the penalty
mandatory under certain circumstances.      Without necessarily
agreeing with that analysis, it is our opinion that the less ‘.
discretion placed in the courts and juries to determine the sentence
to be imposed, the more likely it is that the Furman Court will
uphold the statute.

                           SUMMARY

                 Under the .decision of the United States Supreme
             Court in Furman v. Georgia,     408 U, S.,.238, 33L. Ed.
             2d 346 (1972), a statute leaving the imposition of the
             death penalty to the discretion of the~agency assessing
             punishment, without setting precise objective standards
             by which the selection of alternative punishments is
             to be invariably determined, would be held unconstitu-
             tional.

                                      Very truly yours,




                              u       JOHN L. HILL
                                      Attorney General of Texas

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.

    Honorable Bob Hendricks.   page 3 (H-13)




    APPROVED:




    DAVID M. KENDALL,     Chairman
    Opinion Committee




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