A revived discussion on how to apply the death penalty is unfolding in Texas, with some lawmakers analyzing how it’s being imposed on defendants with serious mental illness or intellectual and developmental disabilities.

“Our courts have asked the legislature to step up on this topic,” Rep. Joe Moody, D-El Paso, said. Moody chairs the House Committee on Criminal Jurisprudence, which met Monday at the Texas State Capitol to listen to invited testimony on this issue.

Judge Elsa Alcala, who currently serves on the Texas Court of Criminal Appeals, told the committee she wasn’t advocating for lawmakers to lean one way or another, but that she wants “a death penalty system that is fair to everyone concerned.”

“Judges have been asking for an instruction on intellectual disabilities for over a decade, I think, and without the legislature’s guidance in writing the law, courts have had to come up with their own version of the definition of intellectual disabilities,” she said during an interview. “That version was recently struck down by the U.S. Supreme Court in 2017 in Moore v. Texas.”

Alcala said when that happens, “the danger is we’re more in a legislative function than we are in a judicial function.”

In Moore v. Texas, the U.S. Supreme Court said Texas had “deviated from prevailing clinical standards and from the older clinical standards the court claimed to apply.”

“In concluding that Moore did not suffer significant adaptive deficits, the CCA overemphasized Moore’s perceived adaptive strengths,” the court said.

Some mental health advocates said when people with intellectual and developmental disabilities come in contact with the criminal justice system, they often fall behind.

“We really think that criminal justice professionals, which includes law enforcement, which includes attorneys, which includes judges and victim service providers, should undertake a comprehensive training on working with individuals with intellectual and developmental disabilities,” Kyle Piccola with The Arc of Texas said.

Alcala said right now, different counties approach the death penalty in different ways as well.

“If you have one [district attorney] who is seeking [the death penalty] in one case and the other one who is not seeking it with identical facts, there seems to be an inequity and we’re not really targeting the worst of the worst,” she said. “We’re really just targeting who happened to commit a crime in a particular county.”

“The State of Texas already has standards in place to gauge eligibility for example, like with Health and Human Services, so we would support mirroring that,” Piccola said.