On his first day in office, President Donald Trump signed 26 executive orders, including one directing federal officials to resume executions and provide states with a road to additional death sentences.
The executive order, “Restoring the Death Penalty and Protecting Public Safety,” encourages states to utilize the death penalty more frequently and gives the U.S. attorney general a number of recommendations. Although the order would facilitate more capital punishment convictions, it runs counter to a current trend in Texas, the state with the highest number of executions, where the death penalty has been used less frequently and to record lows.
A number of Texas state senators are aiming to create more rules to guarantee that the process is carried out as morally as possible as Trump attempts to increase the number of executions in the US. Three of the seven death penalty-related proposals that have been submitted to the Legislature seek to completely abolish the death penalty, while the other four set boundaries and provide structure to a procedure that is now governed by Supreme Court rulings and case-by-case discretion.
Trump has advocated for the death punishment for a long time. Thirteen people were executed during his first term, more than any other president since the federal death sentence was reinstated in 1988. After former President Joe Biden commuted 37 of the 40 federal death sentences, including seven in Texas, only days before he left office in 2021, the executive order instantly overturned the federal moratorium on federal executions. State executions were unaffected by the moratorium in 2021.
The attorney general is instructed under the presidential order to try to reverse decisions made by the U.S. Supreme Court that “limit the authority” of state and federal officials to pursue the death penalty. Although the court has played a major role in shaping the foundation for the application of the death penalty in the United States, the directive does not identify which decisions might be directly targeted.
According to Robin Maher, executive director of the Death Penalty Information Center, the ambiguity of the phrasing makes it instantly unclear what might change.
“This is really very speculative we don t know what cases they are talking about or what legal challenges are contemplated,” Maher stated. “This is another one of those statements where we have sort of a general expression of intent, but no real specifics to back it up.”
The 2002 decision Atkins v. Virginia, which declared the execution of people with intellectual disabilities to be unlawful, is one significant precedent that has changed the application of the death sentence in the twenty-first century. Following Atkins v. Virginia, Texas has since issued a number of supplemental rulings, such as in 2017 and 2019, when the court twice overturned a Harris County death sentence and mandated that states use updated medical standards to assess whether a convicted prisoner satisfies the requirements for intellectual disability.
Since Atkins v. Virginia, 32 death row inmates from Texas have been released on the basis of proof of intellectual disability. Even if those executions were declared unconstitutional, state courts and appeals still have the authority to decide whether defendants are considered intellectually handicapped because no federal rule or decision specifies the criteria that states should apply.
A number of states have already established criteria for identifying inmates who qualify for the exemption from death sentences for those with intellectual disabilities. However, neither the exception nor a procedure for determining who is exempt have been established in Texas. As the next administration may consider rollbacks, Texas House Representative Senfronia Thompson, a Democrat from Houston, has been working for years to move the state toward a framework, so the absence of guidance is not for lack of effort.
Thompson has submitted a measure in several sessions that would codify the exemption and establish a separate pretrial jury hearing for individuals charged with capital crimes to determine if they are legally eligible for an intellectual disability hearing. The bill momentarily gained support from Republicans after the Supreme Court’s 2019 decision against Texas, but it ultimately failed in the Senate.
“We re not plowing new ground, because other states have done this, are doing this, and have been doing it for a while,” Thompson stated. “We re trying to eliminate a patchwork situation.”
In the 2025 legislative session, the bill is now known as House Bill 688. According to Thompson, her team estimates that the pretrial hearing will cost over $250,000. Although it would sound pricey at first, Thompson emphasized that it could avoid the more costly death sentence proceedings, for which counties would have to spend millions of dollars on the trial and appeals.
Currently, a decision stating that a defendant has an intellectual disability is made “ad-hoc basis,” according to Texas Defender Services executive director Burke Butler. With five Supreme Court victories in its 30-year existence and the removal of 44 death row inmates since 2018, the nonprofit group represents people facing the death penalty.
According to Butler, HB 688 offers a simplified procedure for figuring out a defendant’s eligibility at a specific stage of the trial.
“This is an issue that really requires and deserves a separate hearing to determine whether someone has intellectual disability,” Butler stated.
According to Thompson, HB 688 is a safeguard that the state must follow to make sure that the death penalty is being applied constitutionally, not a declaration on the morality or cost of the practice.
“We re not saying that because it costs X number of dollars we shouldn t do this,” Thompson stated. “We re saying that if we re going to do this and that issue is raised, there should be a pre-trial hearing helped by a jury utilizing the current medical data.”
The attorney general is also instructed to take “all necessary and lawful action” to guarantee that states that use lethal injection for capital punishment have an adequate supply as part of Trump’s executive order. Laws are in place to protect the public from knowing who provides the medications to states that use lethal injection as a method of execution, including Texas.
Since pharmaceutical companies have ceased supplying governments with pentobarbital for use in executions, Texas has had difficulty obtaining and preserving sufficient supplies of the substance used for fatal injections during the previous ten years. Requests for comment regarding the presidential order and its potential to get lethal injection drugs were not answered by Texas Department of Criminal Justice officials.
Officials in Texas used a number of strategies to keep the medicine in stock, including retesting the present supply to extend its expiration dates. Due to the possibility of gruesome executions, Texas prisoners filed numerous challenges against the practice.
Hours before an execution, a court in Austin in 2023 went so far as to issue a temporary injunction, declaring that TDCJ’s usage of its pentobarbital “is probably illegal to possess or administer because it is more likely than not expired.” The Texas Criminal Court of Appeals reversed that decision.
To compensate for the scarcity, Texas has also turned to nearby compounding pharmacies, where medications are made on-site using the required ingredients. One San Antonio compounding facility supplied pentobarbital to the state between 2019 and 2023, despite obtaining many fines from the Texas State Board of Pharmacy for failing to maintain sterile compounding settings, according to a 2024 NPR investigation.
However, utilizing the unexpired medication may also conflict with recent regulatory findings, even if there is an adequate supply available. Days before Trump’s inauguration, former U.S. Attorney General Merrick Garland issued a memorandum suspending the federal single-drug lethal injections alongside a Department of Justice report that concluded the method likely caused painful pulmonary edema in executed individuals. The article compares the feeling of induced pulmonary edema to waterboarding and cites Texas as one of seven states that use the same technique.
States that use the single-drug technique are still able to execute prisoners using that method because the memorandum only applies to federal executions. Texas will be the first state in the United States to carry out a single-dose lethal injection execution of an inmate since the DOJ’s guidance was released on February 5.
The executive order’s sole component that instructs the attorney general to pursue particular charges against prospective defendants lists two situations in which the death penalty ought to be specifically pursued: those who murder law enforcement officers and noncitizens who are unlawfully present in the nation and commit capital crimes.
Currently, the only felony in Texas that carries the death penalty is capital murder, which includes killing firefighters or police officers. However, district attorneys have the authority to decide whether to pursue the death penalty, and state attorneys are not obligated by the executive order to adhere to the new guidelines.
Additionally, a brief portion of the order directs the attorney general to approve or reject outstanding certification petitions for the State Capital Counsel Mechanism Certification, for which Texas is the sole applicant at this time.
States can only be certified if they demonstrate that they have a strong state-provided procedure for post-conviction representation. This certification enables states to expedite habeas corpus petitions that contest the legitimacy of an inmate’s confinement in capital cases. The opt-in certification has never been granted to any state, and according to Butler, Texas just does not have the necessary infrastructure.
“There are a couple of stages of proceedings in state habeas where people aren t entitled to counsel at all in Texas, and that has dire consequences for defendants in those proceedings,” Butler stated.
It’s still unclear how Texas officials will react to the executive order because the state legislative session is in session and the new federal administration has just begun, but others are concerned about how the two will interact because of the gaps in the state’s present laws.
“All of these things really point to the fact that you need a careful and comprehensive system for ensuring robust representation and ensuring that people s legal claims are addressed,” Butler stated. “It s just very concerning that the administration is doubling down on the system that we know is so unjust.”
