When determining whether someone with a death sentence has a mental disability, Texas has long used outdated standards partially created by elected judges. Now that those standards have been ruled unconstitutional, one district attorney wants the state to use a markedly different measuring stick: current medical science.

Harris County District Attorney Kim Ogg sent a brief to the Texas Court of Criminal Appeals Wednesday afternoon in the case of Bobby Moore, a man convicted in the 1980 shooting death of a Houston supermarket clerk. Ogg now says Moore is intellectually disabled, but the questions surrounding the prisoner's mental capacity led to a March Supreme Court ruling that invalidated Texas’ method of determining intellectual disability for death row inmates. Justice Ruth Bader Ginsburg wrote in the court’s opinion that the state’s test created an “unacceptable risk” of executing intellectually disabled people, a practice deemed unconstitutional.

But while the ruling tossed out Texas’ old way of determining disability, it didn’t create a new one. Instead, cases of death-sentenced inmates who were deemed competent for execution under the old test were suddenly ripe for new litigation, and at least two men who had been on death row for decades had their sentences changed to life in prison — all while awaiting a final ruling on Moore’s intellectual capacity.

Ogg asked for Moore's sentence to be reduced to life in prison, and her brief also asked Texas to create a new way of determining intellectual disability — one that sticks to the medical books.

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“‘Unacceptable risk’ necessitates that the States should strictly adhere to the definitions of intellectual disability as contained within the most current versions of the clinical manuals,” said the brief.

She implored Texas to conform to the standards set by the American Psychiatric Association, similar to how Louisiana and Mississippi determine intellectual disability. If the Texas court accepts Ogg’s suggestion, death penalty experts say it will put Texas in line with the Supreme Court's ruling and will put fewer Texas death penalty cases in front of the high court in the future.

“You don’t have the same systemic problems in states that are using medical definitions,” said Robert Dunham, executive director of the Death Penalty Information Center, a national organization critical of current death penalty practices. “We see persistent problems in states [that] have adopted standards that are clearly inconsistent with the contemporary medical standards or have created procedures that make it virtually impossible to prove intellectual disability.”

Dunham said in general that states have sought to conform to previous Supreme Court rulings, but others — Texas, Georgia, Missouri, Arkansas and Florida — have created hurdles for proving the disability. He said the best way for Texas to avoid future problems is to use existing medical standards.

The Texas Attorney General’s Office, which represents the state in federal death penalty appeals, and several district attorneys in counties where intellectual disability cases are in play did not return phone calls Thursday.

In 2002, the Supreme Court ruled that executing people with intellectual disabilities is unconstitutional under the Eighth Amendment, but it left it up to the states to determine how to qualify the condition. The legal definition of intellectual disability doesn’t have to fully match a medical definition, but it does have to be informed by the current medical frameworks, according to the court.

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The Texas Court of Criminal Appeals created its own method two years later. Death penalty critic Judge Elsa Alcala wrote in a 2015 opinion that the test was only meant to be a temporary solution “in the absence of any legislative guidance.” The method found inmates facing execution intellectually disabled if their IQ was 70 or below. If an IQ was above 70 but close enough to be within a margin of error (the state put Moore at 74), the court would look at how well the person functioned in daily life by referencing 1992 medical guidelines and a controversial set of questions called the “Briseno factors.”

The factors included questioning if a neighbor or family member would consider the person disabled, the person’s ability to lie and the planning involved in the murder. In its March ruling, the U.S. Supreme Court said the Briseno factors strayed too far from medical-based frameworks.

“The [Court of Criminal Appeals] overemphasized Moore's perceived adaptive strengths — living on the streets, mowing lawns, and playing pool for money — when the medical community focuses the adaptive-functioning inquiry on adaptive deficits,” Ginsburg wrote.

Chief Justice John Roberts agreed with the incorrect usage of the Briseno factors but wrote in a dissenting opinion that the court’s majority tossed the Texas court’s ruling without considering societal standards.

“The Court instead crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability,” Roberts wrote. “But clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment.”

It's unknown when the Texas court will make a decision in Moore's sentence or a new way to determine intellectual disability. In the meantime, the death penalty's intersection with intellectual disability is up in the air.

Read related Tribune coverage:

  • The U.S. Supreme Court ruled in favor of Moore in March, sending his case back to the appeals court and invalidating the state's method of determining if a death-sentenced inmate is intellectually disabled and therefore ineligible for execution. [Full story]

  • For the second time in a week, a Texas death row inmate had his sentenced tossed out following the Bobby Moore Supreme Court ruling. Robert Campbell, 44, was on death row for nearly 25 years in a Houston kidnapping and murder. [Full story]

  • Our Faces of Death row app is a filterable view of everyone living with a death sentence in Texas. [Full story]

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