            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                           NO. WR-82,265-01 & WR-82,265-02



                           IN RE TYRONE ALLEN, Applicant



                 ON APPLICATION FOR A WRIT OF MANDAMUS
                      TO THE FIFTH COURT OF APPEALS
                 IN CAUSE NOS. 05-14-01167-CV & 05-14-01168-CV
                           FROM DALLAS COUNTY

       Yeary, J., filed a concurring opinion.

                                CONCURRING OPINION
       Applicant, Tyrone Allen, is charged in two indictments with capital murder. Applicant

requested a pre-trial hearing on the issue of whether he is intellectually disabled and thus
immune from the death penalty. The trial court granted that motion, but the State sought a

writ of mandamus from the court of appeals to compel the trial court to vacate its order

permitting the pre-trial hearing. Now Applicant seeks a writ of mandamus from this Court

to compel the court of appeals to withdraw its order disallowing the pre-trial hearing, and this

Court conditionally grants the writ, finding that “uncertainty surrounding intellectual-

disability determinations prevents labeling the judge’s actions a violation of a ministerial

duty.” Majority opinion at 1. I join this Court’s opinion. I also write separately to provide
                                                                                    Allen — 2

a little more context to the complex problem created by the United States Supreme Court’s

declaration that mentally retarded offenders are immune from the death penalty and to urge

the Legislature to address this still relatively new development in capital jurisprudence to

provide both a workable definition of mental retardation in the context of the death penalty

and an appropriate procedure for the litigation of that issue.

       In Atkins v. Virginia, decided in 2002, the United States Supreme Court discerned a

national consensus against the execution of “mentally retarded” offenders and declared that
such offenders are categorically immune from the death penalty. 536 U.S. 304 (2002). The

Court observed, “[t]o the extent there is serious disagreement about the execution of mentally

retarded offenders, it is in determining which offenders are in fact retarded.” Id. at 317. The

Court noted, “[n]ot all people who claim to be mentally retarded will be so impaired as to fall

within the range of mentally retarded offenders about whom there is a national consensus.”

Id. But the Court refused to provide a clear framework for separating “the sheep from the

goats.”1 Instead, it expressly left to the states “the task of developing appropriate ways to

enforce the constitutional restriction” it had declared. Atkins, 536 U.S. at 317. In so doing,

it forced upon the states the burden to address the challenges posed by the inevitable

onslaught of claimants seeking to establish their categorical immunity from capital

punishment.

       In 2004, in response to Atkins, and in the absence of legislation in Texas carrying out

the mandate of Atkins, but with an eye toward providing “the bench and bar with temporary

judicial guidelines in addressing Atkins claims,” this Court acted to create “judicial standards

for courts considering [Atkins] [post-conviction habeas corpus] claims under [Texas Code

of Criminal Procedure] article 11.071.” Ex parte Briseno, 135 S.W.3d 1, 5 (Tex. Crim. App.

2004). The Court concluded it needed to act because of the “significant number of pending



       1
           Mark 25:32, The New American Bible, Catholic Publishers, Inc. (1971).
                                                                                          Allen — 3

habeas corpus applications” it faced that argued exemption from execution based on mental

retardation. Id.

       This Court used Briseno to “define [from its own perspective] that level and degree

of mental retardation at which a consensus of Texas citizens2 would agree that a person

should be exempted from the death penalty.” Id. at 6. The Court recognized that, the term

“mental retardation” as defined in the DSM-IV included those categorized as mildly,

moderately, severely, and profoundly mentally retarded, and that “some 85% of those
officially categorized as mentally retarded fall into” the mildly mentally retarded range. Id.

at 5. The Court observed that “mental retardation is not necessarily a lifelong disorder.” Id.

at 6. And it noted that “those in the mental health profession” might understandably “define

mental retardation broadly to provide an adequate safety net for those who are at the margin”

and who “might well become mentally-unimpaired citizens if given additional social services

support.” Id. The Court questioned whether “a consensus of Texas citizens” would agree

“that all persons who might legitimately qualify for assistance under the social services

definition of mental retardation” should be “exempt from an otherwise constitutional

penalty.” Id. But in the absence of legislative guidance, it adopted the definitions of “mental

retardation” then promulgated by the American Association on Mental Retardation (AAMR)3


       2
         Although this Court did not explain why it felt compelled to define the level according to
what it perceived to be a consensus of Texas citizens as opposed to American citizens, I presume it
had in mind the Supreme Court’s delegation of the duty to the States to develop “appropriate ways”
to “enforce the constitutional restriction” it had spoken into existence in Atkins. Atkins, 536 U.S. at
317.

       3
          The Supreme Court referred to the AAMR definition of mental retardation in Atkins. 536
U.S. at 308 n.3 & 317 n.22. That organization has now changed its name to the American
Association on Intellectual and Developmental Disabilities (AAIDD). The Supreme Court also
referred to the American Psychiatric Association (APA) definition of mental retardation as it was
then described in the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders
(DSM IV-TR): “The essential feature of Mental Retardation is significantly subaverage general
intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive
                                                                                       Allen — 4

and section 591.003(13) of the Texas Health and Safety Code. Id. Those definitions were

very similar.

       The AAMR definition provided that mental retardation is a disability characterized

by (1) “significantly subaverage” general intellectual functioning, (2) accompanied by

“related” limitations in adaptive functioning, and (3) onset prior to the age of 18. See Ex

parte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App. 2004). The most recent amendment to the

Texas Health and Safety Code definition of “mental retardation” defines it as “intellectual
disability,” and it defines “intellectual disability” as “significantly subaverage general

intellectual functioning that is concurrent with deficits in adaptive behavior and originates

during the developmental period.” T EX. H EALTH & S AFETY C ODE § 591.003(13) & (7-a).

       Recently, in Hall v. Florida, 134 S.Ct. 1986 (2014), an opinion overturning Florida’s

rule, which barred persons presenting only IQ test scores over 70 “from presenting other

evidence” that would show intellectual disability, the Supreme Court followed the mental

health community’s modification of the name “mental retardation” to “intellectual disability.”

The Court explained, “[p]revious opinions of this Court have employed the term ‘mental

retardation.’ This opinion uses the term ‘intellectual disability’ to describe the identical

phenomenon. [citations omitted].” 134 S.Ct. at 1990 (emphasis added). Clearly the Supreme

Court was referring to the identical phenomenon in Hall as was referred to in Atkins.

       In Hall, the Court also made the observation that, in its opinion “the medical

community [still] defines intellectual disability according to three criteria: significantly

subaverage intellectual functioning, deficits in adaptive functioning (the inability to learn

basic skills and adjust behavior to changing circumstances), and onset of these deficits during


functioning in at least two of the following skill areas: communication, self care, home living,
social/interpersonal skills, use of community resources, self-direction, functional academic skills,
work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion
C).” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders p.
41 (4th ed. 2000).
                                                                                      Allen — 5

the developmental period.” Id. at 1994. But the changes happening in the mental health

community’s leading reference materials on intellectual disability deserve closer scrutiny, as

they appear to indicate that the community may be moving toward a completely new

understanding of the disorder described in Atkins—an evolution to an understanding of the

disorder which may or may not be consistent with the Supreme Court’s Eighth Amendment

jurisprudence and which may or may not be consistent with what that Court proclaimed in

Atkins to be the current “national consensus” concerning execution of the mentally retarded.
       Justice Alito pointed out in his dissenting opinion in Hall that, “the views of

professional associations often change.” 134 S.Ct. at 2006 (Alito, J., dissenting). Indeed, the

most recent revision of the APA’s Diagnostic and Statistical Manual of Mental Disorders,

the DSM-V, contains notable and consequential changes with respect to not only the name,

but also the definition of the disorder. The most obvious change, of course, is the name of

the disorder. It was previously known as “mental retardation.” It is now described as

“intellectual disability.” But more important for purposes of considering the APA’s

understanding of the disorder and its relationship to Eighth Amendment jurisprudence, and

particularly the death penalty, is the fact that the essential criteria for inclusion appears also

to have been modified significantly.

       The DSM-IV-TR previously explained that “[t]he essential feature of Mental

Retardation is significantly subaverage general intellectual functioning (Criterion A) that is

accompanied by significant limitations in adaptive functioning in at least two of the

following areas . . . (Criterion B).”4 The DSM-V now explains that “[t]he essential features

of intellectual disability . . . are deficits in general mental abilities (Criterion A) and

impairment in everyday adaptive functioning, in comparison to an individual’s age-, gender-,




       4
           APA, Diagnostic and Statistical Manual of Mental Disorders 41 (rev. 4th ed. 2000).
                                                                                     Allen — 6

and socioculturally matched peers . . . (Criterion B) .”5 Where the former essential features

of “mental retardation” described Criterion A as “significantly subaverage general

intellectual functioning,” the new essential features of “intellectual disability” describe

Criterion A as merely “deficits in general mental abilities.” Similarly, where the former

essential features of “mental retardation” described Criterion B as “significant limitations

in adaptive functioning” the new essential features of “intellectual disability” describe

Criterion B as merely “impairment in everyday adaptive functioning.” These changes, and
particularly the dropping of any notion of “significance” with regard to the essential features,

seem to me to indicate that an expansion may be at hand—at least from the perspective of

the mental health community—of the numbers of persons that might be potentially subject

to a diagnosis for the disorder. In addition, the former essential features relating to Criterion

B seemed to require comparison of the individual to society at large, whereas the new

essential features relating to that same criterion seem to require specific comparison “to an

individual’s age-, gender-, and socioculturally matched peers.”

       The Supreme Court assures us that its determination is “informed by the views of

medical experts” but that those views “do not dictate the Court’s decision.” Hall, 134 U.S.

at 2000. That Court counsels that “[t]he legal determination of intellectual disability is

distinct from a medical diagnosis,” but the Court is also clear that the legal framework should

be “informed by the medical community’s diagnostic framework.” Id. Hence, the medical

community’s diagnostic framework cannot be ignored in fashioning an appropriate response

to the Supreme Court’s mandate in Atkins. But, it seems to me that the medical community’s

diagnostic framework in place when Atkins was decided might be the most appropriate

guidepost, not necessarily some potential variant that might be arrived at by associations of

mental health professionals as they seek to further refine their professional diagnostic


       5
           APA, Diagnostic and Statistical Manual of Mental Disorders 37 (5th ed. 2013).
                                                                                      Allen — 7

criteria. That diagnostic framework—the one in place at the time that Atkins was decided—is

the one about which the Supreme Court claimed to discern a national consensus. While the

medical community may refine its framework at any time, refinements by that community

alone and in isolation give no concrete assurance that such refinements are consistent with

any national consensus about death penalty immunity. To hold otherwise would seem nothing

less than a complete delegation of the responsibility to identify who is categorically immune

from the death penalty away from the courts and the legislatures and the people of this
country, and instead to shift that responsibility to the elite leaders in the mental health

community.

       While I agree that it is important to remain informed by the mental health community

concerning current professional thought and diagnostic criteria, the courts and the legislatures

of the various states are the true laboratories for the ascertainment of national consensus, if

any actually exists, concerning constitutional death penalty immunity. See, e.g., Ex parte

Cathey, 451 S.W.3d 1, 9-10 (Tex. Crim. App. 2014) (explaining, “Although psychology and

psychologists inform the factual decision, they do not determine whether an inmate is exempt

from execution under Atkins. We must apply our own judgment. . . .”). The goals and

objectives of the mental health community may not always necessarily align neatly with those

of the criminal justice system. Indeed, care should be taken to guard against improper

motives of some who might claim the right to define mental retardation so broadly as to

cover any person who might seek a diagnosis in order to avoid the requirements of justice

under the law.6 The death penalty is a punishment, not a disease.

       This case presents a perfect illustration of the inefficiencies that can, and likely will,

continue to arise because of the failure of our State to legislatively define mental retardation


       6
          See, e.g., Cathey, 451 S.W.3d at 15 n.42 (observing that Professor Flynn “advocates
adjusting IQ scores when the death penalty is at stake because then an IQ score may be a matter of
‘life or death’”).
                                                                                         Allen — 8

and establish procedures to give effect to the Supreme Court’s mandate in Atkins.7 In the

event the trial court in this case conducts a pre-trial hearing to determine whether the

defendant is mentally retarded, the proof at that hearing will likely include, in addition to any

other evidence reflecting directly upon the criteria for establishing mental retardation, a trial

of the very facts of the capital murder offense itself—separately and before the actual guilt

or innocence phase of the trial.8 Then, during the defendant’s trial, the same evidence will

likely be presented again. In effect, therefore, the whole case might need to be tried twice.
The State will be required to marshal its evidence twice, and the witnesses will be forced to

face the court and examination by counsel twice. This, it seems to me, is an unnecessary

hardship for everyone involved.

       The majority has already explained that “[l]egislation is required” 9 with regard to a

statutory scheme for the administration of mental retardation claims. I too urge the

Legislature to tackle this hard issue with all deliberate speed and to provide the guidance that

is uniquely the province of that body. This Court and the other courts of our State and the

people of our State need and deserve a unified procedure for the determination of these

questions. We also need the Legislature to provide a clear definition of mental retardation




       7
         On at least one prior occasion, our Legislature has passed such a bill. According to the
Supreme Court’s opinion in Atkins, the bill passed through the House on April 24, 2001, and through
the Senate on May 16, 2001, but then-sitting Governor Perry vetoed the legislation on June 17, 2001.
Atkins, 536 U.S. at 315 n.16.
           8
           See Ex parte Briseno, 135 S.W.3d 1, 8-9 (Tex. Crim. App. 2004) (identifying “other
evidentiary factors which factfinders in the criminal trial context might also focus upon in weighing
evidence as indicative of mental retardation or of a personality disorder,” including “[p]utting aside
any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense
require forethought, planning, and complex execution of purpose?”).
       9
           Majority opinion at 12.
                                                                                 Allen — 9

that ought to be applied in carrying out the mandate of Atkins that mentally retarded persons

are constitutionally protected from the death penalty.

       With these additional comments, I join the opinion of the Court.



FILED:        May 13, 2015
PUBLISH
