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DALLAS (CBSDFW.COM) – The Texas Court of Criminal Appeals ruled that a Dallas County judge has the right to hold a hearing to figure out whether an accused murderer has the mental capacity to face the death penalty.

When the U.S. Supreme Court ruled that executing the intellectually disabled is unconstitutional it was up to the states to pass new laws –Texas never did.

Now comes the case of Tyrone Allen, who is accused of capital murder. Allen is accused of shooting and killing his pregnant girlfriend, Breshuana Jackson, and shooting a police officer during a high-speed chase before surrendering after a four-hour standoff.

Mugshot of Breshuana Ranise Jackson. (credit: Dallas County Sheriff's Dept.)

Mugshot of Breshuana Ranise Jackson. (credit: Dallas County Sheriff’s Dept.)

Allen is also listed in the Texas sex offender list for two convictions of indecency with a child by exposure, one in 2000 and one in 2001. He was sentenced to a year in prison on both occasions.

Prosecutors want the now 28-year-old Dallas man put to death. Defense lawyers want a judge to decide, before the trial, whether Allen is “intellectually disabled and thus immune from the death penalty.”

Legal analyst Ed Klein says it’s clear the case is a long way from being decided. “Surely someone’s going to take it up on appeal, to question whether or not what the legislature has passed is constitutional or protects the defendants rights properly.”

Klein says the legislature has sidestepped the question of mental capacity and the death penalty for more than 10 years. “It appears that the Court of Criminal Appeals is saying, ‘Look, you’re going to have finish the case first and then bring it up and we’ll decide whether or not what you did was constitutional perhaps. Or, you have to wait until the legislature passes some statutes to give you guidance.’”

Lawyers claim Allen’s IQ is too low to qualify for the death penalty. Prosecutors say it’s a question for the jury to decide, if indeed he is convicted.

No hearing date in Allen’s case has been set.

(©2015 CBS Local Media, a division of CBS Radio Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.)

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