Texas House of Representatives Passes Bill to Limit Death-Penalty Eligibility for Defendants Who Do Not Kill

In an overwhelming bipartisan vote, the Texas House of Representatives has passed a bill that ends death-penalty liability under the state’s controversial “law of parties” for felony accomplices who neither kill nor intended that a killing take place and were minor participants in the conduct that led to the death of the victim. Currently, Texas law makes any participant in a felony criminally liable for the acts of everyone else involved in the crime, irrespective of how small a role he played in the offense or whether he knew or intended that a killing would occur.

The state House voted 135 to 6 on May 5, 2021 to approve HB 1340, advancing the bill for consideration by the Texas Senate. The legislation also directs the Texas Board of Pardons and Paroles to review the cases of prisoners who previously had been sentenced to death under the rule of parties to “identify appropriate inmates to recommend to the governor for purposes of granting clemency.”

The bill’s sponsor, Rep. Jeff Leach (R – Plano), said “I have trouble sleeping at night knowing that there is … a man, and perhaps many men and women, on death row right now who could be put to death any day by the state when they didn’t kill anybody.” “We want to reserve the death penalty … for cases in which there is intent,” Leach said.

Leach, a death-penalty supporter, became a champion of reforming the law of parties when Texas was on the verge of executing Jeffery Wood in August 2016. Wood was convicted and sentenced to death even though he neither killed nor intended for anyone to be killed and, his supporters say, was in a car in the parking lot not even aware that the robbery in which a codefendant killed a store clerk was going to occur. The Texas Court of Criminal Appeals stayed Wood’s execution five days before he was scheduled to die to permit him to litigate a claim that the prosecution had presented false expert evidence claiming he would pose a continuing threat to society if spared the death penalty.

Since 1976, at least eleven people have been executed after being sentenced to death in felony-murder cases in which the evidence undisputedly establishes that they did not kill anyone. Six of those men were executed in Texas under the law of parties. In 2019, an ACLU review of death penalty statutes in the United States found that 27 states permit the death penalty for non-triggermen. However, no other state statute subjects non-killers to capital punishment as broadly as the Texas law of parties.

In a May 6 column for the Austin American-Statesman, Ken Herman noted some of the injustice wrought by the law of parties. “It’s a law that always makes me think back to Doyle Skillern and Charles Sanne, both convicted in the 1974 slaying of Texas Department of Public Safety undercover narcotics officer Patrick Randel in Aransas County,” Herman wrote. “Sanne fired six shots that killed Randel, who was in a car with him. Skillern was in another vehicle nearby and was in on the planned robbery that turned into unplanned murder. Under the law of parties, non-gunman Skillern was executed in 1985. Gunman Sanne also was sentenced to death, but that was reduced by the Texas Court of Criminal Appeals to life in prison in 1980. And that’s where he died in April 2018.”

A few months later, in December 2018, Texas executed Joseph Garcia, one of seven Texas prison escapees implicated in a failed robbery that led to a shootout in which a police officer was killed. Garcia was sentenced to death despite not participating in the shootout and, he said, coming under fire himself when he tried to stop the shooting.

Most recently, the state came within an hour of executing Ruben Gutierrez in June 2020. Gutierrez had sought DNA testing to support his claim that he had been waiting in a park at the time of the murder, unaware that his co-defendants were going to kill an elderly woman while robbing her home. The U.S. Supreme Court halted his execution only because Texas had refused to allow his spiritual adviser to accompany him into the execution chamber. Ruling on a motion that was undecided at the time Gutierrez received his stay, a federal judge later declared that Texas had unconstitutionally denied him DNA testing.

Both Wood’s and Gutierrez’s cases remain on appeal.