Texas Legislature 2019

Texas House offers a new way to determine whether a defendant has intellectual disabilities — and is ineligible for execution

The lower chamber gave initial approval to a bill creating a pretrial process to determine if a capital murder defendant is intellectually disabled — more than 15 years after the U.S. Supreme Court said executing such prisoners is cruel and unusual punishment.

State Rep. Senfronia Thomson, D-Houston, authored a bill that would determine whether a death penalty defendant is eligible for execution before his or her trial begins.
State Rep. Senfronia Thomson, D-Houston, authored a bill that would determine whether a death penalty defendant is eligible for execution before his or her trial begins.  Bob Daemmrich for The Texas Tribune

For almost two decades, the state of Texas has struggled with a question: What’s the process for deciding whether a death penalty defendant has intellectual disabilities and is, therefore, ineligible for execution?

On Monday, the Texas House moved to come up with an answer — after the U.S. Supreme Court ruled in 2002 that executing people with such disabilities amounts to cruel and unusual punishment. House Bill 1139 would allow a capital murder defendant to request a pretrial hearing to determine if he or she is intellectually disabled. If a judge makes such a determination, the death penalty would be off the table. That defendant, if eventually convicted, would instead receive an automatic life sentence without the possibility of parole.

The measure was authored by state Sen. Senfronia Thompson, a Houston Democrat, but was championed by members of both major parties. It tentatively passed the lower chamber along a voice vote with no debate. The bill needs a final stamp of approval before it can head to the Senate.

"Often, the bills that we debate on this floor are about what we want to do," state Rep. Joe Moody, D-El Paso, one of the authors of the bill, told the chamber Monday. "This is about what we must do."

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Since the 2002 ruling from the high court, states have come up with their own methods of defining whether a defendant has an intellectual disability. But the Texas Legislature never set a method — despite repeated pleas from the state’s highest criminal judges. That resulted in a patchwork system set by the courts to determine whether a person facing the death penalty should be spared from execution.

Eventually, the state’s top criminal appeals court established its own test for deciding intellectual disability for death row inmates — but the nation’s highest court struck it down in 2017 as unconstitutional in the case of Bobby Moore. The justices knocked Texas’ method for using decades-old medical standards and a set of nonclinical questions, including how well an inmate could lie, that advanced stereotypes. After a second attempt by the Texas Court of Criminal Appeals to comply with the Supreme Court ruling, the high court again slammed the method.

The bill approved by the House on Monday aims to take the life-or-death decision out of the hands of judges at the Court of Criminal Appeals — sometimes decades after a person has been sentenced to death — and instead set up a process to tackle it ahead of the murder trial.

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Critics of the legislation have argued that it could add costs to death penalty trials by adding another hearing to an already lengthy trial process. Meanwhile, advocates for the bill argue that the state could save millions by reducing the number of appeals — a point Thompson made as she laid out the proposal during a committee hearing in March.

“When we have capital murder cases in this state, it costs Texas for each case about $2.5 million,” Thompson told the committee. “We’re not complaining about the cost for justice to be brought for the victims of crimes such as these. … What we’re merely saying is, if a person is going to raise the issue of intellectual disability, let’s do it at the beginning of the trial.”

Advocates for the bill point out that legislatures in most other death penalty states have created a uniform pretrial procedure guiding courts on how to determine whether a defendant is intellectually disabled. But in a Republican-controlled state with the busiest execution chamber in the nation by far, state lawmakers have generally been wary of any changes that appear to weaken the state’s tough death penalty laws.

If the governor signs the bill into law, it would take effect Sept. 1. The new law would then apply to trials that begin on or after that date.

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Jolie McCullough contributed to this story.