Several Hidalgo County death penalty cases involve post-conviction mental retardation/ intellectual disability issues. Accordingly, I found the recent decision in In re Allen very interesting. In particular, I noticed that several of the opinions in that case suggest that the Legislature act to clarify the procedures to be followed under Texas law. I also found the fact that at least one judge has suggested that the definition of mental retardation utilized for pyschological purposes may not be suited for criminal law purposes quite interesting.

I realize that the current legislative session is about to end. Nonetheless, my question is whether, given the confused status of current Texas law in this area, particularly in light of In re Allen, there has been any discussions about addressing this issue in a special session this summer? Or are Governor Abbott and the Legislature content to maintain the current status of leaving the trial courts and attorneys without any clear legislative guidance in this area?

quote:

Originally posted by Ted Hake:
[Has there] been any discussions about addressing this issue in a special session this summer? Or are Governor Abbott and the Legislature content to maintain the current status of leaving the trial courts and attorneys without any clear legislative guidance in this area?

Hahahaha--uh, no. It is not on their radar at all. No one at the capitol has any idea what is going on in the courts unless the news media tells them.

And if they were to address it, what makes you think it would be in the way you think is correct? Legislating is like passing in football--three things can happen, and two of them are bad. Be careful what you wish for.

The legislature passed the buck. But SCOTUS has accepted the responsibility, granting review in Moore v. Texas, No. 15-797. Expect decision in January, February, or March of 2017, so Texas legislature will remain silent next session.

I just read today's SCOTUS decision in Moore v. Texas, which reversed the C.C.A.'s ruling applying the factors for analyzing an intellectual disability claim set out in Ex parte Briseno, 135 S.W.3d 1 (Tex.Crim.App. 2004). The 5-3 majority opinion certainly suggests that reliance should be placed on medical experts and cites little legal authority for its position, while Chief Justice Roberts' dissent accurately points out that judges, and not clinicians, should decide Eighth Amendment issues.

Nonetheless, even the dissent says that the Briseno factors are an unacceptable method of addressing the issue.

I realize that the Legislature has avoided getting into this can of worms for years and that the current session is over halfway over. I have also noted that the Supreme Court has remanded Moore back to the C.C.A. "for further proceedings not inconsistent with this opinion".

So my question at this point is whether anyone has any guesses as to what the Legislature or the C.C.A. might do with the issue of standards for determining intellectual disability at this point?
Clearly, Texas judges and lawyers need some type of guidance as to what standards should apply.

Legislature: nothing, at least not this session.

CCA: Who knows? As the Chief states: "It is not at all clear when a State’s deviation from medical consensus becomes so great as to “diminish the force” of that consensus, ante, at 2, and thereby violate the Constitution."