The Texas House is scheduled to consider a bill Wednesday that some say could “effectively abolish the death penalty for the most heinous crimes.”

House Bill 727 by Democrat State Rep. Toni Rose of Dallas would exempt criminals who are found to have had a “severe mental illness” from capital punishment. According to the proposal, this is defined as a person who has schizophrenia, a schizoaffective disorder, or a bipolar disorder.

On their own motion, or by the request of either party, a judge can appoint a “disinterested expert” to evaluate the defendant. In practice, however, this could lead to a massive drop in death penalty charges even being brought.

“This is going to lead to a tremendous increase in trial and appellate costs that is likely to dissuade many prosecutors from even attempting to bring a death penalty case,” said attorney Tony McDonald. “It effectively turns every death penalty case simultaneously into an insanity defense case.”

According to data from the Treatment Advocacy Center, 10 percent of all homicides in the United States are committed by individuals with schizophrenia or bipolar disorder. For mass killings, the percentage is approximately 33 percent.

“If I’m a prosecutor, why go through the trouble and expense when the most egregious cases are the ones most likely to be exempt?” added McDonald. “Every murder defendant will invoke this defense, and it will be most effective for those who commit the most heinous crimes.”

The bill was unanimously approved by the House Criminal Jurisprudence Committee, which is chaired by Democrat State Rep. Joe Moody of El Paso. Moody himself is a staunch opponent of the death penalty.

The committee meeting earlier this month was brief, with only a handful of witnesses coming to testify in favor of the bill.

Representatives from the Texas Municipal Police Association, the Houston Police Officers Union, and Tarrant County District Attorney Phil Sorrells’ office registered opposition to the bill.

Sorrell told Texas Scorecard he believed current law was sufficient:

Current Texas law already provides important safeguards regarding competency, sanity, and mental illness in capital murder death penalty cases.  Death penalty defendants already have the opportunity to raise competency issues before their trial and to present sanity and other mental health issues at trial for jury consideration.  Death penalty decisions are then reviewed by the Texas Court of Criminal Appeals, the Federal District Court, the Federal Circuit Court of Appeals, and the United States Supreme Court before any defendant is executed.

Texas Code of Criminal Procedure article 46.05 provides a specific means for a defendant to challenge his execution based on incompetency. The Andre Thomas case is often mentioned in support of HB 727.  In that case, once his attorneys invoked this statute, the trial court issued a stay of execution and withdrew its execution order. The statutory safeguards in place worked. There is no need for any additional legislation.

The bill is on the calendar of bills that the Texas House is slated to consider on Wednesday, March 29. Despite it being the 79th day of the 140-day legislative session, it is one of the first bills to be considered by the House so far.

Brandon Waltens

Brandon serves as the Senior Editor for Texas Scorecard. After managing successful campaigns for top conservative legislators and serving as a Chief of Staff in the Texas Capitol, Brandon moved outside the dome in order to shine a spotlight on conservative victories and establishment corruption in Austin. @bwaltens

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