Texas Attorney General’s Office Refuses to Cooperate with Committee Subpoena for Robert Roberson, Blocking His Testimony for the 2^nd Time

On December 17, 2024, a bipar­ti­san group of Texas leg­is­la­tors in the House Committee on Criminal Jurisprudence issued a new sub­poe­na for death-sen­tenced Robert Roberson to tes­ti­fy in per­son on December 20 about the state’s junk sci­ence law, under which he failed to receive relief. Gretchen Sween, attor­ney for Mr. Roberson, said that he was ​“eager to tes­ti­fy and grate­ful for the chance to be heard.” But just two days after the issuance of the sub­poe­na, and a day ahead of Mr. Roberson’s sched­uled tes­ti­mo­ny, the Office of the Attorney General filed a motion for a pro­tec­tive order to pre­vent Mr. Roberson from tes­ti­fy­ing in front of the House Committee. AG Ken Paxton argues that Mr. Roberson is a secu­ri­ty threat and that ​“the sub­poe­na is pro­ce­du­ral­ly defec­tive and there­fore invalid as it was issued in vio­la­tion of the House Rules, the Texas Constitution, and oth­er applic­a­ble laws.” AG Paxton wrote that because Mr. Roberson’s case has become ​“high­ly pub­li­cized,” there are increased risks with trans­port­ing him to Austin, and ​“to mit­i­gate these risks even slight­ly, TDCJ would have to devote sig­nif­i­cant­ly more human and phys­i­cal resources to the trans­porta­tion” of Mr. Roberson than an entire group of pris­on­ers. According to the AG, leg­isla­tive sub­poe­nas must receive approval from two-thirds of a com­mit­tee, and the com­mit­tee did not recon­vene to approve this sub­poe­na. AG Paxton took to social media to argue that his motion ​“auto­mat­i­cal­ly excus­es” Texas Department of Criminal Justice from acknowl­edg­ing the sub­poe­na until res­o­lu­tion of the motion.

In a state­ment released after AG Paxton’s motion was filed, Ms. Sween said that she ​“expect­ed to sit beside [her] client, Robert Roberson” but instead, the AG’s office ​“have, for a sec­ond time, inter­fered with the Committee’s law­ful right to obtain his appear­ance and take his tes­ti­mo­ny.” While she did not par­tic­i­pate in the trans­porta­tion nego­ti­a­tions, Ms. Sween said, ​“at the out­set of all this, high-lev­el per­son­nel with TDCJ made it clear to [her] per­son­al­ly that it would be no trou­ble at all to bring Robert to the Capitol. Then the OAG inter­vened. And now they have done so again — rely­ing on base­less and vague smear and cheap fear-mon­ger­ing to jus­ti­fy an act seem­ing­ly with­out legal basis.” According to Ms. Sween, ​“the real ​‘fear’ at play here seems to be that see­ing and hear­ing from Robert will make it clear to the pub­lic that an inno­cent man sits on death row who is also a gen­tle soul with a pro­nounced dis­abil­i­ty.” Chair of the Committee, Joe Moody, and mem­ber Jeff Leach pre­vi­ous­ly accused the AG’s office of inten­tion­al­ly stonewalling Mr. Roberson’s tes­ti­mo­ny. Representative Leach, said dur­ing a pan­el dis­cus­sion in ear­ly December 2024 that he believes the AG’s office is ​“try­ing to delay [tes­ti­mo­ny] until the start of the next ses­sion, which is just hor­ri­fy­ing and mad­den­ing to me.”

Previously, the House Committee, unan­i­mous­ly issued a sub­poe­na for Mr. Roberson to tes­ti­fy on October 21, 2024 — four days after his sched­uled exe­cu­tion date. The unprece­dent­ed maneu­ver, in the form of a legal­ly bind­ing sub­poe­na, result­ed in a stay of Mr. Roberson’s exe­cu­tion just 90 min­utes before it was sched­uled to occur. Because of objec­tions from AG Paxton, how­ev­er, Mr. Roberson did not tes­ti­fy on October 21. AG Paxton said Mr. Roberson would only be allowed to tes­ti­fy over video ​“in inter­est of pub­lic safe­ty,” which both the Committee mem­bers and coun­sel for Mr. Roberson say would not be effec­tive or appro­pri­ate because Mr. Roberson has autism. The Committee held its sched­uled hear­ing on October 21, but did not hear tes­ti­mo­ny from Mr. Roberson. In the days fol­low­ing this hear­ing, AG Paxton’s office released a press state­ment to ​“set the record straight” about the case and to ​“cor­rect false­hoods” that he accused state law­mak­ers of mak­ing about Mr. Roberson. AG Paxton also char­ac­ter­ized the defense’s efforts to have Mr. Roberson tes­ti­fy as ​“eleventh-hour, one-sided, extra­ju­di­cial stunts that attempt to obscure facts and rewrite his past.” Texas Governor Gregg Abbott also react­ed aggres­sive­ly to efforts to save Mr. Roberson from exe­cu­tion, alleg­ing that law­mak­ers ​“stepped out of line” by issu­ing the sub­poe­na that result­ed in the stay of execution.

In November 2024, the Texas Supreme Court ruled that the leg­isla­tive committee’s sub­poe­na over­stepped its pow­er and ​“con­clud­ed that under these cir­cum­stances the committee’s author­i­ty to com­pel tes­ti­mo­ny does not include the pow­er to over­ride the sched­uled legal process lead­ing to an exe­cu­tion.” However, the Court said that ​“if the com­mit­tee still wish­es to obtain [Mr. Roberson’s] tes­ti­mo­ny, we assume that the depart­ment can rea­son­ably accom­mo­date a new sub­poe­na.” The Court added that ​“so long as a sub­poe­na issues in a way that does not inevitably block a sched­uled exe­cu­tion, noth­ing in our hold­ing pre­vents the com­mit­tee from pur­su­ing judi­cial relief in the ordi­nary way to com­pel a wit­ness­es’ tes­ti­mo­ny.” In response to the Court’s rul­ing, Chairman Moody and mem­ber Jeff Leach said that ​“the Supreme Court strong­ly rein­forced our belief that our com­mit­tee can indeed obtain Mr. Roberson’s tes­ti­mo­ny and made clear that it expects the Executive Branch of gov­ern­ment to accom­mo­date us in doing so.” The leg­is­la­tors added that they ​“look for­ward to work­ing with the Executive Branch to do just that.” 

Mr. Roberson was con­vict­ed and sen­tenced to death in 2003 for the death of his daugh­ter Nikki, who med­ical experts have since deter­mined died from severe viral and bac­te­r­i­al pneu­mo­nia that doc­tors failed to diag­nose, not from abuse or ​“Shaken Baby Syndrome.” Despite three new expert reports show­ing Nikki died of pneu­mo­nia, no court has been will­ing to con­sid­er the evi­dence that clears Mr. Roberson of any crime.