Texas legislators seek more protections for death penalty defendants in wake of Trump executive order

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Among the 26 executive orders President Donald Trump signed on his first day in office was one that directed federal officials to resume executions and give states a pathway to more death sentences.

The executive order, titled “Restoring the Death Penalty and Protecting Public Safety,” provides a slew of directives for the U.S. attorney general and encourages states to increase use of capital punishment. While the order would make it easier to obtain more capital punishment verdicts, the directive clashes with a current trend in Texas, the leading state in executions by far, in which use of the death penalty has dwindled to record lows.

As Trump seeks to increase executions in the United States, several Texas state lawmakers are hoping to establish more guidelines to ensure the practice is done as ethically as possible. Of the seven bills filed in the Legislature related to the death penalty, three aim to abolish the sentence entirely, but four others establish limits and structure to a process currently defined by Supreme Court precedents and case-by-case discretion.

Trump has long been a proponent of the death penalty. More federal executions occurred during his first term than any other president since the federal death penalty was reestablished in 1988, with 13 people executed. The executive order immediately lifted the federal moratorium on federal executions implemented in 2021 by former President Joe Biden, who commuted 37 of the 40 federal death sentences — seven in Texas — days before leaving office. The 2021 moratorium did not affect state executions.

Supreme Court precedents: codify or clear out

The executive order directs the attorney general to attempt to overturn U.S. Supreme Court precedents that “limit the authority” of state and federal officials from seeking the death penalty. The order does not specify which rulings might specifically be targeted, but the court has been the most crucial piece in forming the basis on how capital punishment is implemented in the U.S.

The vagueness of the language means what might change is immediately unclear, said Robin Maher, executive director of the Death Penalty Information Center.

“This is really very speculative — we don't know what cases they are talking about or what legal challenges are contemplated,” Maher said. “This is another one of those statements where we have sort of a general expression of intent, but no real specifics to back it up.”

One major precedent that has shifted use of the death penalty in the 21st century is Atkins v. Virginia, the 2002 case which established executions of the intellectually disabled as unconstitutional. Several supplementary rulings after Atkins v. Virginia have since come out of Texas, including in 2017 and 2019, when the court twice struck down a death sentence out of Harris County and ruled states must use updated medical standards to determine whether a convicted inmate meets the standards of intellectual disability.

Texas has removed 32 people from death row based on evidence of intellectual disability since Atkins v. Virginia. Yet despite the rulings making those executions unconstitutional, no case or federal law outlines the standards states should use to determine which defendants qualify as intellectually disabled, leaving that process to state courts and appeals.

Several states already have codified the exemption from death sentences for intellectually disabled inmates and created standards for determining who is eligible. Texas, however, has not codified the exemption or a process to discern who is exempt. The lack of guidance is not for a lack of trying: Texas House Rep. Senfronia Thompson, D-Houston, has been trying to push the state toward a framework for years, especially as the new administration potentially eyes rollbacks.

In multiple sessions, Thompson has filed a bill that would codify the exemption, as well as create a separate, pretrial jury hearing for those charged in capital cases to discern whether they legally qualify as intellectually disabled. After the Supreme Court ruled against Texas in 2019, the bill briefly picked up some Republican backing before failing in the Senate.

“We're not plowing new ground, because other states have done this, are doing this, and have been doing it for a while,” Thompson said. “We're trying to eliminate a patchwork situation.”

Now called House Bill 688 in the 2025 legislative session, Thompson said her team estimates the cost of the pretrial hearing would be about $250,000. While the cost may seem expensive initially, Thompson stressed it could circumvent the more expensive death penalty trials, which counties would have to pay millions of dollars through the trial and appeal process.

Currently, a ruling determining a defendant is intellectually disabled is done on an “ad-hoc basis,” said Burke Butler, executive director of the Texas Defender Services. The nonprofit organization provides legal representation for death penalty defendants, having won five Supreme Court cases in its 30-year history and removing 44 defendants from death row since 2018.

Butler said HB 688 provides a streamlined process to determine a defendant's eligibility at a single point in the trial.

“This is an issue that really requires and deserves a separate hearing to determine whether someone has intellectual disability,” Butler said.

Thompson clarified HB 688 is not a statement on the ethical or financial responsibility the state has for death sentences, but a guardrail it needs to ensure it’s being constitutionally applied.

“We're not saying that because it costs X number of dollars we shouldn't do this,” Thompson said. “We're saying that if we're going to do this and that issue is raised, there should be a pre-trial hearing helped by a jury utilizing the current medical data.”

Boosting the use of lethal injections

Part of Trump’s executive order also directs the attorney general to take “all necessary and lawful action” to ensure states that use lethal injection for death sentences have a sufficient supply. Many states, including Texas, that use lethal injection as a means of execution have laws in place shielding public knowledge of who supplies the drugs to states.

In the past decade, Texas has struggled to acquire and maintain adequate amounts of pentobarbital, the drug used for lethal injections, as pharmaceutical companies have stopped providing it to governments for use in executions. Officials from the Texas Department of Criminal Justice declined requests for comment on the executive order or its ability to secure lethal injection drugs.

For Texas to maintain its stock of the drug, officials turned to a variety of means, including retesting current supply for its potency to push back expiration dates. The practice resulted in multiple lawsuits from Texas inmates because of the risk of painful executions.

In 2023, an Austin judge went as far as to issue a temporary injunction hours before an execution, stating TDCJ’s use of its pentobarbital “is probably illegal to possess or administer because it is more likely than not expired.” That ruling was overturned by the Texas Criminal Court of Appeals.

Texas also has looked to local compounding pharmacies — where drugs are created on-site using necessary ingredients — to make up for the shortage. A 2024 NPR investigation found one compounding facility in San Antonio provided pentobarbital to the state from 2019 to 2023 while receiving several citations from the Texas State Board of Pharmacy for failing to maintain sterile compounding environments.

Yet even with enough of the unexpired drug available, using it may also clash with recent federal findings. Days before Trump’s inauguration, former U.S. Attorney General Merrick Garland issued a memorandum suspending the federal single-drug lethal injections alongside a Department of Justice report that concluded the method likely caused painful pulmonary edema in executed individuals. Texas is one of seven states listed using the same method described in the report, which likened the sensation of induced pulmonary edema to waterboarding.

Because the memorandum affects only federal executions, states that use the single-drug protocol can still execute inmates with that method. On Feb. 5, Texas is scheduled to be the first state in the U.S. since the DOJ’s advisory was issued to execute an inmate with a single-dose lethal injection.

“Doubling down”

The only element of the executive order that directs the attorney general toward specific charges for potential defendants outlines two cases in which the death penalty should especially be sought: noncitizens illegally present in the country who commit capital crimes and anyone who kills law enforcement officials.

In Texas, capital murder is currently the only crime eligible for the death penalty, which includes the killing of police officers or firemen. Whether or not the death penalty is sought, however, is at the discretion of district attorneys, and the executive order does not require state attorneys to follow the new guidance.

A short section of the order also instructs the attorney general to accept or deny pending requests for certifications for the State Capital Counsel Mechanism Certification, for which Texas is currently the only applicant.

The certification allows states to fast-track habeas corpus petitions — which challenge the legality of an inmate’s incarceration — in capital cases, but states can only be certified if they prove they have a robust state-provided process for post-conviction representation. No state has ever received the opt-in certification, and Butler said Texas simply lacks the infrastructure to qualify.

“There are a couple of stages of proceedings in state habeas where people aren't entitled to counsel at all in Texas, and that has dire consequences for defendants in those proceedings,” Butler said.

With the state legislative session underway alongside the start of the new federal administration, much is still uncertain as to how the executive order will be received by Texas officials, but the current gaps in the state’s provisions have some worried how the two will mix.

“All of these things really point to the fact that you need a careful and comprehensive system for ensuring robust representation and ensuring that people's legal claims are addressed,” Butler said. “It's just very concerning that the administration is doubling down on the system that we know is so unjust.”