88th LegislatureCriminal JusticeState House‘Severe Mental Illness’ Death Penalty Exemption Passes Initial Texas House Vote

Rose's bill is now one vote away from moving across the rotunda to the Texas Senate where its passage will be more tenuous.
March 29, 2023
The first truly divided vote on legislation within the Texas House came on a bill that’d prohibit those deemed to have a mental illness from being given the death penalty.

House Bill (HB) 727 by Rep. Toni Rose (D-Dallas) reads, “A defendant who at the time of the commission of a capital offense was a person with severe mental illness may not be sentenced to death.”

It defines a person with “severe mental illness” as anyone who cannot adequately “appreciate the nature, consequences, or wrongfulness of the person ’s conduct … or exercise rational judgment in relation to the person’s conduct.”

Either upon request of the defendant and his counsel or of the judge, a court-appointed “expert” will be assigned to examine the defendant’s mental capacity; that process can occur at the beginning or end of the trial. If judged to suffer from “severe mental illness” and convicted of the offense that’d merit capital punishment, the judge would instead sentence the defendant to life in prison without parole.

Capital punishment is an eligible penalty for crimes of murder or participation in a felony that results in someone’s death.

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In her bill analysis, Rose wrote, “In 1986, the U.S. Supreme Court ruled in Ford v. Wainwright that it was unconstitutional to execute someone who is deemed insane.”

“This decision left the determination of insanity and competency for execution up to each state; however, it has not prevented the execution of offenders with severe and persistent mental illnesses, such as schizophrenia or bipolar disorder.”

Rep. Jeff Leach (R-Plano), a joint author of the bill, spoke in favor of it on the floor, saying, “As a supporter of the death penalty, I am against executing people who at the time of the offense had a severe mental illness.”

“We cannot and should not — especially as pro-life conservatives — execute people who lacked the requisite mens rea at the time of the offense.”

The bill passed on second reading by a vote of 84 to 61 — 20 Republicans joined House Democrats to pass it.

Despite passage, HB 727 received some opposition not only in the vote total, but also on the floor. Leach said on the front microphone that a letter from an unnamed group had been supplied to members that alleged Rose’s bill would “lead to the end of the death penalty in Texas.”

Leach called it “misinformation.”

From the back microphone, Rep. Bryan Slaton (R-Royse City) lobbed questions at Leach about the percentage — 33 percent, according to a Secret Service-affiliated study cited by Slaton — of “mass shooters” who were diagnosed with schizophrenia or bipolar disorder.

Slaton contended that should HB 727 pass, the number of “mass shooters” eligible for the death penalty would drop significantly and that offenders could “convincingly fake mental illness” to avoid the death penalty.

Leach countered that, due to the 1986 U.S. Supreme Court ruling, the issue of insanity is already being litigated in every capital punishment case in Texas — and added that preventing this litigation in the first place would save the state “millions of dollars.”

But the concern remained about how it’d affect potential pretenders beating the system and avoiding punishment — something Slaton said already occurs, citing a survey from the National Library of Medicine.

Rep. Tony Tinderholt (R-Arlington) attempted to amend Rose’s bill with language that’d exclude from the death penalty restriction anyone who kills more than three people “with malice or forethought.” This was done with school shooters in mind, but Tinderholt’s office confirmed to The Texan that it was expanded to any act of “mass violence.”

After he presented the amendment, Leach immediately called a point of order — a procedural mechanism for killing legislation for violating parliamentary requirements — alleging the proposal was not germane to the content of the bill.

The chair sustained the challenge, ruling that Tinderholt’s amendment pertained to a different class of individuals, someone who killed more than three people, than those the bill focuses on, defendants with “severe mental illness.”

The bill still must pass on third reading before moving to the Senate, which will likely be a much higher bar to clear.


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Brad Johnson

Brad Johnson is a senior reporter for The Texan and an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.