After Texas' second Supreme Court loss in a death penalty case, reform bill lands key GOP support

One day after the U.S. Supreme Court once again invalidated a Texas death sentence and bashed the state’s highest criminal court for its method of determining intellectual disability in death penalty cases, two key Republican lawmakers have signed on to a Democrat’s bill that would create a uniform process.

On Wednesday, state Reps. James White and Jeff Leach became joint authors to Rep. Senfronia Thompson’s House Bill 1139, which would establish a pretrial procedure to determine if a capital murder defendant is intellectually disabled and therefore ineligible for the death penalty. White chairs the House Corrections Committee, and Leach leads the House Judiciary and Civil Jurisprudence Committee.

“We’ve got to get to work here,” White, from Hillister, told The Texas Tribune after adding his name to the bill. “The Supreme Court — not once, but twice — stated that what we’re doing is not constitutional.”

In 2002, the Supreme Court ruled that executing people with intellectual disabilities was unconstitutional, but states were left to come up with their own methods of defining the condition. The Texas Legislature hasn’t taken action, instead putting the issue on individual courts, which have implemented varied methods for deciding the crucial question of whether a person should be spared from execution.

Often, prosecutors simply don’t seek the death penalty when there is a credible claim of intellectual disability. Other times, juries are told to weigh the issue after convicting someone of capital murder — when they’re deciding during a trial’s punishment phase between life in prison or death.

As filed, Thompson’s bill, which already had joint authors in Democratic Reps. Joe Moody of El Paso and Armando Walle of Houston and matches a bill by state Sen. Borris Miles, D-Houston, would allow a capital murder defendant to request a hearing to determine intellectual disability before trial. If a judge determined the defendant was intellectually disabled — defined as having a low IQ with deficits in practical and social skills since youth — the death penalty would be taken off the table and the defendant would receive an automatic life sentence without the possibility of parole if convicted.

Advocates and the bipartisan group of lawmakers argue that a legislative change is necessary after recent rulings put Texas at odds with the U.S. Supreme Court.

For years, the Texas Court of Criminal Appeals, the top criminal court in the state, has begged lawmakers to set up a uniform process. But without movement from the Capitol, the Texas court established its process of determining intellectual disability in late appeals of those set for execution. The test relied on decades-old medical standards and a controversial set of questions the judges imposed, including how well an inmate could lie.

The Supreme Court ruled the test unconstitutional in 2017 in the case of Bobby Moore, a man sentenced to death nearly 40 years ago in a Houston robbery and murder. A majority of the justices said the Texas court's questions advanced stereotypes. Moore’s case was sent back to Texas, where the Court of Criminal Appeals said it would use current medical standards in its decision but again ruled Moore was not disabled, despite briefings from the prosecutor in his case agreeing Moore had a disability.

On Tuesday, the Supreme Court knocked the Court of Criminal Appeals again without a hearing, saying the lower court’s decision-making process included many of the same flaws as before. This time, the justices said plainly that Moore had shown he was intellectually disabled — making him ineligible for execution.

Leach, from Plano, said Tuesday’s ruling added fuel to his already-pending decision to sign on to Thompson’s bill. Leach has become a rare Republican critic of Texas death penalty practices — fighting to stop multiple executions and saying he would consider a moratorium on the death penalty. On Wednesday, he told the Tribune that the intellectual disability bill as filed may not be perfect, but it needs a legislative discussion.

“This is a crucial issue for our state," he said. “And conservatives, Republicans, should not be afraid to engage in this discussion on the front lines.”