Texas Appeals Court Denies Death-Row Prisoners Stays of Execution, Judicial Review of State’s Use of Expired Drugs in Upcoming Executions

The Texas Court of Criminal Appeals (TCCA) has grant­ed an appli­ca­tion by Texas Attorney General Ken Paxton to block a state tri­al court from review­ing a civ­il law­suit filed by three death-row pris­on­ers who chal­lenged the state’s intent to exe­cute them using lethal-injec­tion drugs they claimed were ​“unlaw­ful­ly obtained and long-expired.” 

In a rul­ing issued on January 4, 2023, the court direct­ed Travis County Judge Catherine A. Mauzy ​“to refrain from issu­ing any order pur­port­ing to stay the January and February [2023] exe­cu­tions” of Robert Fratta, Wesley Ruiz, or John Balentine (pic­tured, left to right). The court pro­vid­ed no expla­na­tion for its decision. 

Fratta is sched­uled to be exe­cut­ed January 10, 2023. Ruiz and Ballentine are sched­uled to be exe­cut­ed on February 1 and February 8, respectively.

Judge David Newell dis­sent­ed. Newell not­ed that pri­or TCCA deci­sions that barred legal chal­lenges to the state’s lethal injec­tion pro­to­col through crim­i­nal habeas cor­pus pro­ceed­ing left the civ­il courts as the only means of obtain­ing judi­cial review. By pre­vent­ing the tri­al court from issu­ing a stay, Newell wrote, the court’s rul­ing ​“cre­ates a Catch-22 in which death-row inmates have a civ­il rem­e­dy to pur­sue claims regard­ing the method of exe­cu­tion but may not stop the exe­cu­tion to raise them.”

Assistant fed­er­al defend­er Shawn Nolan, who rep­re­sents Ruiz and Ballentine, said that the TCCA was ​“wrong in bar­ring the Texas civ­il courts from decid­ing whether the state of Texas is vio­lat­ing its own statutes by using expired drugs to exe­cute pris­on­ers. … We will con­tin­ue to push for our clients to have their exe­cu­tions con­duct­ed accord­ing to Texas law.”

Ruiz and Ballentine filed suit in state civ­il court on December 14, 2022 alleg­ing that Texas intend­ed to ​“exe­cute [them] with unlaw­ful­ly obtained and long-expired pen­to­bar­bi­tal.” Fratta lat­er joined the lawsuit.

Their com­plaint alleged that the Texas Department of Criminal Justice (TDCJ) planned to car­ry out their exe­cu­tions with com­pound­ed pen­to­bar­bi­tal obtained on April 29, 2019 and March 18, 2021 from an undis­closed phar­ma­cy, in vio­la­tion of mul­ti­ple pro­vi­sions of Texas law. TDCJ then stored the drugs at room tem­per­a­ture, the law­suit states. Compounded pen­to­bar­bi­tal expires in ​“24 hours, if stored at room tem­per­a­ture,” and after ​“45 days, if kept in a sol­id, frozen state,” the com­plaint said. As a result, every vial of pen­to­bar­bi­tal in TDCJ’s pos­ses­sion expired more than 20 months ago, with some sup­plies of the drug expired for more than 43 months. 

“Given the age of the drugs and [TDCJ’s] fail­ure to com­ply with statu­to­ry require­ments,” the com­plaint alleges, ​“the pen­to­bar­bi­tal … will act unpre­dictably, obstruct IV lines dur­ing the exe­cu­tion, and cause unnecessary pain.” 

TDCJ denied that the drugs have expired, assert­ing that “[a]ll lethal injec­tion drugs are with­in their use dates and have been appropriately tested.” 

The Texas Attorney General’s office respond­ed to the law­suit by fil­ing an appli­ca­tion for a writ of pro­hi­bi­tion in the TCCA seek­ing to block the civ­il courts from hear­ing the case. The TCCA issued an order on December 30, 2022 halt­ing all pro­ceed­ings in the civ­il court pend­ing res­o­lu­tion of the attor­ney general’s application.

Texas law with­holds from pub­lic dis­clo­sure infor­ma­tion relat­ing to the source and han­dling of its lethal injec­tion drugs, claim­ing with­out evi­dence that secre­cy is nec­es­sary to pro­tect poten­tial sup­pli­ers from threats and harass­ment. ​“Texas con­tin­ues to just real­ly rely on secre­cy in these exe­cu­tions,” Nolan said, ​“and that’s why they’re try­ing to do an end run around this law­suit because they don’t want to tell any­body that these drugs are expired.” 

After numer­ous dis­putes with coun­sel, Fratta rep­re­sent­ed him­self in much of the state fed­er­al post-con­vic­tion appeal process. In April 2022, the U.S. Supreme Court denied his pro se peti­tion to review his case and denied his motion for recon­sid­er­a­tion in September 2022. He cur­rent­ly has two oth­er peti­tions for review, with asso­ci­at­ed appli­ca­tions to stay his exe­cu­tion, pend­ing before the Court.