Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.
A measure to bar the death penalty for defendants with severe mental illness hit a snag in the Texas House of Representatives Thursday, one day after the chamber had initially approved the bill.
House Bill 727, by state Rep. Toni Rose, D-Dallas, tentatively passed Wednesday on an 84-61 vote. But a final vote scheduled for Thursday was postponed until next week without a reason given on the floor.
In a statement released Saturday, Rose said the bill appeared to have enough votes to clear the House and was delayed “due to ongoing conversations we’re engaging in to present a strong level of support for the proposal to the Senate.”
Rose passed similar measures out of the House in the last two legislative sessions, only for them to fall flat in the more conservative chamber.
“I believe that the third time is the charm,” Rose said during debate on the House floor.
The Democrat also is getting pushback in her own chamber this year as hardline conservatives oppose the measure, arguing it will make it too hard to impose the death penalty, and that defendants could fake mental illness.
Facing opposition from one of the House’s most conservative members on the floor Wednesday, Rose emphasized that under her bill, severely mentally ill capital murderers “would still be punished, they would just not be sentenced to death.” Instead, they would be sentenced to life in prison without the possibility of parole.
In recent months, high-profile cases of schizophrenic prisoners facing execution have focused renewed attention on Texas’ long-standing habit of sentencing people with mental illnesses to death.
In October, attorneys for the state of Texas admitted that Scott Panetti is severely mentally ill, but still attempted to persuade a federal judge that he is sane enough to be executed. In his infamous 1995 murder trial, Panetti, repeatedly diagnosed as schizophrenic, represented himself, calling to the stand witnesses like Jesus Christ and John F. Kennedy. He questioned himself on the stand as “Sarge,” using a distorted voice when speaking as the spirit inside him he claimed was responsible for the murders of his in-laws.
Before going to prison, Panetti had been hospitalized 14 times for psychotic behavior and was found to be severely disabled, according to court records. The federal judge has not yet ruled whether Panetti can get a new execution date.
This month, Andre Thomas narrowly avoided death after a Texas court withdrew his execution date to allow his attorneys more time to argue he is not competent to be killed. In 2004, Thomas immediately confessed to killing his estranged wife and two young children, according to court records, telling police God told him to kill his family.
Thomas, who began experiencing hallucinations as a child, went to the hospital for help with his delusions the day before the murder. In jail awaiting trial, Thomas gouged out his right eye. In prison, he gouged out his remaining eye and ate it.
U.S. Supreme Court precedent prohibits states from executing people who don’t have a “rational understanding” of why the state plans to kill them, but it does not specifically ban killing those with severe mental illness, as it does those with intellectual disabilities. And as is documented in nearly 30 years of attempting to execute Panetti, the state of Texas still seeks to carry out death sentences of the severely mentally ill.
Rose’s bill would prohibit death sentences for capital murder defendants found to have had a severe mental illness at the time of their crime, and it would tackle the issue before trial. A person with severe mental illness would be defined as someone with schizophrenia, schizoaffective disorder or a bipolar disorder with active psychotic symptoms that limit the person’s ability to fully understand what they did.
In Texas, a person can be charged with capital murder, the only death-eligible crime, for certain types of killings — including those in which a child, a police officer or multiple people were victims — or if the defendant allegedly killed someone while committing another felony, like a robbery. Once convicted, the murderer is either sentenced to life in prison without the possibility of parole or death.
HB 727 would set up a pretrial process for capital murder defendants to first offer evidence of a severe mental illness. If there is enough evidence to warrant a hearing, a jury would determine if the defendant’s mental state would make them ineligible for the death penalty.
If jurors decide a defendant qualifies as severely mentally ill, and the person is convicted of capital murder, the judge would impose an automatic sentence of life without parole. Otherwise, a separate sentencing hearing would be held to decide on either a sentence of life or death, as is typical in Texas death penalty trials.
The legislation addresses only future capital murder defendants, meaning it would not alter the sentences of Panetti, Thomas or others who have already been convicted.
If the bill does finally pass the House, it will move on to the Senate, where its future is also uncertain. Since Rose began filing versions of the legislation in 2017, the Senate has yet to act on her bills. But there had been increasing progress in the House.
In 2017, the bill did not make it to the House floor. In 2019, it moved out of the House on a narrow margin in the final vote. Last session, an identical bill to the current House version was passed with significantly more support in the House in May — late in the legislative session.
This year, after state Rep. Bryan Slaton, R-Royse City, pegged the bill as one that would allow mass murderers to avoid punishment, the bill tentatively passed again on a narrower margin. The rabble-rousing conservative is well known for agitating members of both parties with his hardline opposition.
Slaton claimed that mental health examinations which diagnose people with mental illnesses are not medical science. He also said mass murderers are regularly diagnosed as mentally ill and would therefore be exempt from a death sentence.
Examinations over one’s mental capacity are already deeply entrenched in death penalty cases, since one must be competent for execution, but typically this process occurs in expensive appeals after a sentence is handed down.
“It has to be a case-by-case basis,” Rose said. “And it requires the severe mental illness determination before trial, which saves millions of dollars because most of the time when you have a death penalty case, it goes through the appeals process multiple times.”
A longtime conservative supporter of death penalty reforms, state Rep. Jeff Leach, R-Plano, echoed the sentiment, saying “the reason that we have some death row inmates who are sitting in solitary confinement for 23 and a half hours a day for in many cases 10, 20, 30, 40 years is because these issues are being tied up in our courts.”
Leach also pushed back against what he said were attempts to falsely label the bill as one to get rid of the death penalty.
“I am, as a supporter of the death penalty, against executing people who at the time of the offense, had a severe mental illness. And that is well established constitutional law, and other states are passing this law and it’s time for Texas to do the same,” Leach said, standing beside Rose.
“We cannot, we should not, especially as pro-life conservatives, execute people who did not have the requisite ‘mens rea’ at the time of the offense. Period,” he said, using the legal term for having the intention of wrongdoing.
We can’t wait to welcome you Sept. 21-23 to the 2023 Texas Tribune Festival, our multiday celebration of big, bold ideas about politics, public policy and the day’s news — all taking place just steps away from the Texas Capitol. When tickets go on sale in May, Tribune members will save big. Donate to join or renew today.
