Texas is a death penalty state; in fact, it has executed more people than any other state since the reinstatement of the death penalty in 1976. Many of the 561 people put to death by the state since the 1982 execution of Charles Brooks have been intellectually disabled.


Texas has a sorry history wrestling with the issue of defining intellectual disability in the criminal justice system, particularly in death penalty arena. This political and legal inability to resolve the thorny question of how to define and apply a constitutional procedure concerning defendants charged with death penalty eligible crimes facing execution who have legitimate intellectual disability claims was evidenced in the 2019 legislative session.


Conservative Texas lawmakers have once again guaranteed that the intellectual disability issue will be bounced out of the legislature and back into state courts which also have a protracted history of dealing with this issue.


Legislation Proposed to Prevent Execution of Intellectually Disabled


House Bill 1139, introduced by Rep. Senfronia Thompson (D-Houston) in the 2019 session, offered some promise of creating a constitutionally acceptable procedure for dealing with the intellectual disability issue in capital cases; namely, a pretrial hearing designed specifically to determine whether a defendant facing the death penalty is so intellectually disabled as to be ineligible for that penalty.


In an April 30th bipartisan vote, the bill passed out of the House with an overwhelming 102-37 vote and was then given to the Senate Committee on Criminal Justice. That’s where the Committee’s vice-chairperson, Sen. Joan Huffman (R-Houston), got involved in the issue.


Republican Senator Eliminates Provision


Huffman, a former Harris County prosecutor and district judge, has never met a death penalty case she didn’t like and carved out a prosecutorial reputation of seeking the death penalty at any costs, including at the expense of the right to a fair trial.


According to the Texas Observer, Huffman managed to squeeze the pretrial hearing procedure out of House Bill 1139. Huffman’s interference did not sit well with Elsa Alcala, a former Republican judge on the Texas Court of Criminal Appeals, who said that the removal of the pretrial hearing procedures means the bill “does nothing.”


Alcala also told the Senate committee at a May 24 hearing that “the whole point of the bill has now been taken out. It’s worthless. It’s not worth the paper it’s written on.”


Alcala even told Sen. John Whitmire (D-Houston), who accused the former judge of being “halfway rude” to the committee with her expressions of dissatisfaction about Huffman’s action, that “I may just join you on the bench next time to make sure that I prevail. In other words, maybe I’ll just run[again] and make sure I can have my voice heard more clearly.”


The Observer noted that Huffman was “chafed” at Alcala’s suggestion that the bill in its present form makes it “nearly impossible” for a death penalty defendant to convince a jury to separate the charged offense from the defendant’s “everyday behavior.” Put another way, the bill in its present form would make it “nearly impossible” for a defendant to convince a jury that he or she is intellectually disabled.


Sen Huffman Uses Dog Whistle to Justify Executing Intellectual Disabled


Huffman railed that the removal of the pretrial hearing procedure was necessary to prevent an “activist judge” (a favorite term often parroted by President Trump) from finding a defendant intellectually disabled just to keep from imposing the death penalty.


At one point between the contentious exchanges between prosecutor-oriented Huffman and Alcala, Sen. Whitmore suggested closing the committee hearing to the public to which Huffman replied:


“I’m done, I’ve made my point, and everybody knows where I stand.”


And it’s because of the “Huffman stand” that Texas lawmakers, and judges, cannot find a constitutionally acceptable procedure for dealing with intellectual disability claims in death penalty cases.


Legislation Needed After Decision by SCOTUS


House Bill 1139 is the outgrowth of a decision this past February by the U.S. Supreme Court in the case of Bobby Moore, convicted and sentenced to death for the April 1980 murder of a 70-year-old employee of the Birdsall Super Market in Houston, which forcefully instructed the Texas Court of Criminal Appeals, and by proxy the Texas Legislature, that the state cannot execute the intellectually disabled Moore. The Court specifically stated:


“We conclude that the [Texas Court of Criminal Appeal’s] opinion, when taken as a whole and when read in the light both of our prior opinion and the trial court record, rests upon analysis too much of which too closely resembles what we previously found improper. And extricating that analysis from the opinion leaves too little that might warrant reaching a different conclusion than did the trial court. We consequently agree with Moore and [Harris County] prosecutor [Kim Ogg] that, on the basis of the trial court record, Moore has shown he is a person with intellectual disability. “


Legislation Needed to Prevent Risk of Improper Execution


The Court said the state’s current legal procedure and the appellate review standard in dealing with the intellectual disability issue creates risk that an intellectually disabled individual will be executed. This assessment by the nation’s highest court did not impress Sen. Huffman who walks the legislative halls with her prosecutor’s boots on, spreading the “activist judge” false narrative.


Texas AG on Mission to Execute Intellectually Disabled Man


The former prosecutor, and activist judge herself, has a companion in absurdity with Texas Attorney General Ken Paxton who, as the Texas Observer has pointed out, is engaged in a “strange quest to execute an intellectually disabled” Bobby Moore.” The attorney general tried to usurp Harris County District Attorney Kim Ogg, who agrees Moore is intellectually disabled and should not be executed, from the case when it was pending before the Supreme Court.


In court filings, Paxton told the Court that DA Ogg “represents just one of Texas’s 254 counties [and] does not represent the Attorney General’s interest.”


The Observer correctly pointed out that “Moore’s legal saga speaks to the recalcitrant way Texas, the epicenter of the American death penalty, has responded to the Supreme Court’s prohibition on executing intellectually disabled offenders. For years, Texas has executed inmates whom other death penalty states likely would have spared. That’s because the state relied on a legal standard rooted more deeply in stereotypes about intellectual disability than in medical consensus.”


Huffman and Paxton, joined at the convict and execute at any costs hip, ensures that the state’s “recalcitrant way” of dealing with intellectual disability issue in death penalty cases will continue. It also means the Supreme Court will be forced to prevent Texas from executing Bobby Moore and any other condemned inmate with a viable intellectually disability claim.