By Melissa McCall, J.D. | Legally reviewed by FindLaw Staff | Last reviewed September 02, 2024
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The State of Texas leads the nation in the number of executions in capital cases. Texas has one of the nation's largest death row populations. Capital punishment has a controversial history in the United States. The federal government executes in federal prisons, while most states, including Texas, have the death penalty as an option for capital murder.
Capital punishment in America goes back to the colonial American execution of Captain George Kendall in Jamestown, Virginia. Texas's history with capital punishment goes back to its pre-statehood days. By the time Texas joined the United States, it had executed eight people by hanging. Texas' first execution after it achieved statehood happened in 1924 via electrocution. Aside from a brief national moratorium based on the U.S. Supreme Court's ruling in Furman v. Georgia, capital punishment has always been the law in Texas.
Furman is a critical U.S. Supreme Court case within the context of the historical background of the death penalty in America. In Furman, the Court found that the imposition of a death sentence in this specific felony murder case unconstitutional. In the aftermath of Furman, American states scrambled to close any unconstitutional loopholes in their capital punishment statutes. In 1972, two years after Furman, Texas reinstated the death penalty.
Today, Texas has executed over 235 persons convicted of capital murder since it reinstated the death penalty.
Texas reserves its death penalty for severe crimes such as capital murder. According to the Texas Penal Code, capital murder involves specific circumstances, starting with the commission of murder under V.T.C.A., Penal Code § 19.02. Special circumstances, including the following, escalate murder to capital murder:
Texas' District Courts (state courts) have jurisdiction over all death penalty cases. Those facing capital punishment can appeal their sentence to the Texas Court of Criminal Appeals. The Texas Court of Criminal Appeals has final appellate jurisdiction on all death penalty cases.
The Texas Department of Criminal Justice (TDCJ) takes custody of the convicted offender after the death penalty sentence and houses them on death row. The Texas Board of Pardons is also within the TDCJ.
The TDCJ segregates death row inmates by gender. Once there, these inmates often begin the appeals process, hoping for a reprieve. In Texas, death row inmates get an automatic appeal to the Texas Court of Criminal Appeals. If the appeal is unsuccessful, they may file a writ of habeas corpus with a federal court.
Per the Texas Code of Criminal Procedure, a writ of habeas corpus is a remedy for incarcerated people. It is also "an order issued by a court or judge of competent jurisdiction, directed to anyone having a person in his custody, or under his restraint, commanding him to produce such person, at a time and place named in the writ, and show why he is held in custody or under restraint."
Death row inmates can also directly appeal to the U.S. Supreme Court for relief. Often, inmates facing a certain execution date will appeal to the SCOTUS in hopes of a stay of execution.
In Texas, the governor has the authority to grant clemency. They usually do so on the recommendation of the Texas Boards of Pardon and Parole. Clemency only offers a reprieve from the death sentence and subsequent execution. Death row inmates who get clemency get a new sentence of life imprisonment.
Life imprisonment without parole became a sentencing option in 2005. Before the U.S. Supreme Court's ruling in Roper v. Simmons, Texas sentenced minors to death. In Roper, the SCOTUS affirmed that the execution of minors was unconstitutional under the Eight Amendment to the U.S. Constitution. Texas no longer sentences offenders under 18 years of age to death. Instead, they usually get a life sentence.
Like many other death penalty states, Texas uses lethal injection for its executions. Although Texas now uses lethal injection, it has used different methods like electrocution via the electric chair (1923-1964) and hanging (1819-1923) to execute offenders.
The table below highlights the basics of Texas capital punishment laws.
| Code section | Pen. 12.31, 19.03, 8.07; CCrP 37.071, 43.14 |
|---|---|
| Is capital punishment allowed? | Yes |
| Effect of defendant's incapacity | Exempt from execution |
| Minimum age | 18 |
| Available for crimes other than homicide? | No |
| Definition of capital homicide | The victim is a police officer or firefighter in official duty; while committing/attempting to commit kidnapping, burglary, robbery, aggravated sexual assault or arson; obstruction; retaliation; for remuneration or employs another; while escaping; incarcerated and the victim is an employee or inmate; murder more than one person during same criminal transaction or scheme or course of conduct; victim under 10. |
| Method of execution | Lethal injection |
If you or a loved one is facing charges of a capital offense, you need to speak to a qualified criminal defense attorney specializing in death penalty cases. They can help you understand the charges and give you sound legal advice. Speak to an experienced Texas criminal defense attorney today.
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