Hypothetical:

Case is tried in the late 90's. Now, error is discovered and upheld as to punishment. Does this case fall under the new law that allows retrial as to punishment only or would this require a whole new trial?

From HB 3265 (79RS, 2005):

"SECTION 3. (a) The change in law made by this Act applies only to a trial in which the jury renders a guilty verdict on or after the effective date of this Act.
(b) A trial in which the jury renders a guilty verdict before the effective date of this Act is covered by the law in effect when the guilty verdict was rendered, and the former law is continued in effect for that purpose."

Sorry!

I would have guessed that the courts would have treated this as a merely procedural change, absent the language in the legislation.

I wonder what motivated the Leg to include that provision here?

I guess I’m confused. Article 44.29(b) has been the law since 1987. Stewart v. State,13 S.W.3d 127, 131 (Tex.App.-Houston [14 Dist.] 2000, pet. ref’d) (citing Acts 1987, 70 th Leg., p. 1388, ch. 179, sec. 1, eff. Aug. 31, 1987). The bill Shannon links to is about the a *trial court’s* power to grant a new trial on punishment only.

I guess the questions are (1) what does “error is discovered" mean and (2) what does "upheld as to punishment” mean?

From footnote 2 in Ex parte Sewell, 742 SW2d 393 (Tex. Crim. App. 1987):

"Senate Bill 43, which provides that if reversible error is found to exist in the punishment stage of the trial by an intermediate court of appeals or this Court, and no reversible error is found to exist at the guilt stage of the trial, the defendant will only receive a new trial on the issue of punishment, became effective on August 31, 1987. See Acts 70th Leg., ch. 179, p. 2711, sec. 1."

quote:

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Originally posted by kyeary:
I wonder what motivated the Leg to include that provision here?

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I think there is an institutional practice in Leg Counsel toward drafting that eliminates the possibility of ex post facto claims. It is probably just a macro they use whenever drafting a criminal bill. Arguably, that would not be required for the bill on punishment only retrial after a mistrial on punishment, but it is what they put in. The fact that the bill passed was a happy surprise, as I recall.

The Lizard Man is innocent!

For the 1987 amendment, here is the effective date language:

"SECTION 3. The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days in each house be suspended, and this rule is hereby suspended, and that this Act take effect and be in force from and after its passage, and it is so enacted."

The law became effective August 31, 1987.

In the absence of specific language designating the new law as prospective or retroactive, appellate courts have held that procedural changes are retroactive. In recent years, Leg Council has gotten more careful and generally designated amendments as retroactive or prospective. In close questions (or for political reasons, such as fiscal costs), new laws are designated as prospective only.