Capital felonies are the most severe type of felony in Texas. They are the only offenses that can be punished with the death penalty. Even if the prosecutor does not pursue the death penalty, a conviction can come with life in jail without parole.
The only capital felony offense in Texas is capital murder. Even if the sentence is enhanced, no other criminal offense carries the death penalty.
1. What is a capital felony in Texas?
A capital felony is the most severe type of crime in Texas. It is the only criminal offense that carries the death penalty upon conviction.
The only capital felony offense in Texas is capital murder (Penal Code 19.03).
2. What is capital murder?
Capital murder is the most severe type of criminal homicide in the state.
A criminal homicide is the intentional or knowing killing of someone else. Capital murder forbids criminal homicides in its most intense forms. It includes:
- killing someone known to be a police officer or fireman while they are on duty,
- murder for hire,
- killing someone while escaping or trying to escape from jail,
- jail inmates killing prison guards,
- jail inmates killing other inmates while already serving a life imprisonment,
- mass murders,
- serial killings,
- murdering someone under 15 years old, and
- murdering a court judge.
Capital murder also includes intentionally killing someone in the course of any of the following felonies:
- kidnapping (Penal Code 20.03),
- burglary (Penal Code 30.02),
- robbery (Penal Code 29.02),
- aggravated sexual assault (Penal Code 22.02),
- arson (Penal Code 28.02),
- obstruction or retaliation by threatening to harm a public servant (Penal Code 36.06), or
- terroristic threats (Penal Code 22.07),
3. What are the penalties?
Capital felonies carry the harshest penalties for a conviction of any criminal offense. Convictions carry either:
- the death penalty, or
- life in prison.
If the defendant was under the age of 18 at the time of the crime, he will have the possibility of parole. If he is 18 or over, the life sentence is without parole.
It is unconstitutional to put to death anyone who was under 18 at the time of the crime.1
The prosecutor can choose whether to pursue the death penalty or not.
Unlike with other felony offenses, capital felonies do not assess fines.
4. What is the death penalty?
People sentenced to death for a capital felony face lethal injection. Texas currently uses a single-drug injection of pentobarbital.2
Between the time of their conviction and the execution, inmates spend time on death row. Death row is located at the:
- Polunsky Unit in West Livingston, for male inmates, and
- Mountain View Unit in Gatesville, for female inmates.
Once the inmate’s appeals have been exhausted, the sentencing judge sets an execution date. The date has to be at least 90 days in the future. If the date is withdrawn and then reinstated, it has to be at least 30 days in the future.
The lethal injection happens at the Huntsville Unit, in Huntsville, Texas.
5. Is there a special court process for capital felonies?
Capital felony convictions have a special court process.
During sentencing, the jury has to opt for the death sentence unanimously. If the jury cannot reach unanimity, it leads to a sentence of life in jail.
If the prosecutor is only pursuing a life sentence and not the death penalty, then only 10 of the 12 jurors have to agree on guilt.
If a death sentence is imposed, the case is automatically appealed. That appeal takes the case to the Texas Court of Criminal Appeals. This is the state’s highest court for criminal cases. It bypasses the Texas Court of Appeals, where criminal appeals usually go.
If the sentence is affirmed on appeal, inmates can still file habeas corpus motions. These motions can be filed in both state and federal court. These motions demand that a court review the inmate’s confinement.
Inmates can also file for clemency from the Texas Board of Pardons and Paroles. This filing asks to commute the sentence from death to life in prison. After hearing the case, the Board makes a recommendation to the Governor of Texas. If the Board recommends commutation, it is up to the Governor to grant clemency. If the Board refuses to recommend commutation, the Governor cannot grant clemency.
Susie Neilson, “Lethal Injection Drugs’ Efficacy And Availability For Federal Executions,” NPR (July 26, 2019).