On November 15, 2024, the Texas Supreme Court issued a unanimous decision in In re Texas House of Representatives.[1] Writing for the court, Justice Evan Young held that a state legislative committee’s power to compel testimony does not include the power to override a prisoner’s long-scheduled execution.[2] Because of this, the court held there was no basis for the legislature to judicially enforce a subpoena that has the effect of halting an execution.[3]

This case arose when the Texas House of Representatives Committee on Criminal Jurisprudence (the Committee) sought testimony from Robert Roberson. Roberson was convicted of murder and sentenced to death in 2003.[4] Texas’s Court of Criminal Appeals[5] affirmed the conviction, and state and federal courts denied his habeas petitions.[6] Following additional state proceedings, in July 2024, a state district court issued an order for the execution to go forward on October 17, 2024. After this date was set, Roberson’s further attempts to delay or cancel the execution in court and through the executive branch were unsuccessful.[7]

In the lead-up to Roberson’s execution, his case received renewed attention in the press and among state legislators.[8] On October 16—one day before Roberson’s scheduled execution—the Committee held a hearing on Texas Code of Criminal Procedure Article 11.073.[9] Article 11.073, colloquially called the “junk science law,”[10] allows a person to challenge their conviction through a writ of habeas corpus if scientific evidence used to convict him or her has been discredited.[11] The Texas Court of Criminal Appeals denied Roberson’s Article 11.073 habeas petition in September 2024.[12] However, the Committee heard testimony on October 16 that the law had been misapplied in Roberson’s case.[13] At the end of the hearing, the Committee voted to subpoena Roberson for testimony.[14] As the Texas Supreme Court explained, this created a conflict involving all three branches of Texas’s government: the judicial branch determined Roberson’s challenges to his sentence lacked merit, the executive branch declined to grant clemency or issue a 30-day stay of the execution, and the legislature sought to enforce its subpoena.[15]

The Committee sued the Texas Department of Criminal Justice (TDCJ) seeking a temporary restraining order (TRO) and an injunction requiring TDCJ (which had custody of Roberson and carries out executions) to comply with the subpoena and halt the execution until he could testify.[16] The state district court granted a TRO on October 17, which the Court of Criminal Appeals vacated later that day.[17] The Committee then sought an injunction from the Texas Supreme Court under its original jurisdiction.[18] The Texas Supreme Court granted that injunction pending review on the merits.[19]

In its decision on the merits of the injunction, the Texas Supreme Court first determined it had jurisdiction.[20] TDCJ’s first argument was that a judicial order enjoining “a lawful execution would violate the Texas Constitution’s separation-of-powers provision,” and thus that the court lacked jurisdiction.[21] The court disagreed, drawing an analogy to a judicial decision that enjoins enforcement of an unconstitutional statute. Although a court decision preventing the executive from enforcing legislation implicates the separation of powers, no one would argue that a court lacks jurisdiction in such a case simply because a statute may be constitutional.[22] In essence, the court faulted TDCJ’s argument for transforming a merits argument into a jurisdictional one.[23]

Next, TDCJ argued that an order with the effect of staying an execution is an “impermissible exercise of criminal habeas jurisdiction” in the Texas Supreme Court.[24] The court rejected that argument and distinguished the purpose of the subpoena at issue—a subpoena requiring testimony in a non-judicial proceeding—from the traditional purpose of the writ of habeas corpus, which is to require a person’s appearance in court to determine “the lawfulness of their restraint.”[25] The court also found that this was a civil law case involving the separation of powers and the “[Texas] Constitution’s larger structure, not any provision in the Code of Criminal Procedure nor any other criminal statute.”[26] The “guilt or innocence” of any party was not at issue.[27] Thus, the Texas Supreme Court, not the Texas Court of Criminal Appeals, had jurisdiction to hear the case. [28]

Turning to the merits, the court recognized that separation of powers disputes often involve competing claims of authority, some or all of which may be valid in isolation.[29] The court recognized the legislature’s authority to subpoena witnesses as “beyond question,” and it catalogued various reasons for the power as well as its history stretching back to the British Parliament.[30] But that power has subject matter limits, and the power is at its “nadir” when invoking it thwarts “the considered and long-planned work of the other two branches.”[31] That includes the judiciary’s role in capital cases: rendering judgment, imposing a sentence, adjudicating appeals and collateral challenges, and determining the execution’s details.[32] Specifically, a death warrant—issued by the judiciary in Texas—is a command to enforce a sentence.[33] The legislature lacks the power to overturn a court’s final judgment or issuance of a death warrant.[34] The executive branch then has a duty to comply with the death warrant, subject to the executive’s power of pardon and reprieve.[35] In Texas, the power of pardon and reprieve is channeled through the Board of Pardons and Paroles, which must provide a recommendation to the governor.[36] The governor alone may delay an execution a single time by up to 30 days.[37]

Judicially enforcing a legislative subpoena in this case, the court found, would create an indefinite execution delay, superseding the judicial death warrant and going beyond the executive branch’s power to delay the execution.[38] Even though the subpoena did not purport to delay the execution itself, the court recognized it must consider the consequences that enforcement has on the separation of powers.[39] The court also looked to the legislature’s role and expressed doubt that a single committee of one house of the legislature could upend the capital punishment process that the whole legislature set forth in statute.[40]

Given these conflicting powers, each one valid in isolation, the court had to pick which among them is supreme. The court weighed the lengthy process from conviction to execution date, and the judiciary and executive’s roles at each stage. It then looked at the Committee’s interests and actions. In the present case, Roberson was convicted in 2003, Article 11.073 was enacted in 2013, Roberson’s execution date was set on July 1, 2024, and his final appeal was dismissed on September 11—yet the Committee issued its subpoena the day before the execution.[41] The court questioned why the Committee had waited so long, given that all parties had notice of Roberson’s execution date three months in advance.[42] It found this “last-minute subpoena” threatened to upend the judiciary and executive’s well-established roles in the execution process.[43] The court also expressed concern that the subpoena was aimed at intervening in Roberson’s specific case rather than obtaining information needed for legislative purposes.[44] The court also faulted the Committee for failing to show that Roberson’s testimony in particular (instead of public records or testimony from other inmates) was necessary.[45] Because it did not show such necessity, the court held this subpoena could not be judicially enforced to delay the execution.[46]

After considering its separation of powers jurisprudence and the interests of each branch, the court held that a legislative subpoena may not be judicially enforced in a manner that requires cancelling a long-scheduled execution.[47] With that decided, the court addressed the legislature’s power to subpoena Roberson and hear his testimony. The court’s injunction pending appeal had the effect of cancelling Roberson’s execution, and a renewed death warrant must set the execution date at least 90 days in advance.[48] Although the court did not enforce the original October 17 Committee subpoena, it reasoned that the committee could issue a new subpoena prior to Roberson’s new execution date.[49] So long as that subpoena would not have the effect of delaying his execution, the court said nothing in its opinion prevented the Committee from enforcing that subpoena using standard means to compel a witness’s testimony.[50]

The court’s opinion seemed to lay out a smooth process for the Committee to obtain Roberson’s testimony prior to a new execution date. However, subsequent events have not borne that out. On December 10, the Committee issued a new subpoena for Roberson’s testimony at a December 20 hearing.[51] On December 19, Attorney General Ken Paxton, on behalf of TDCJ, filed a motion for a protective order to prevent Roberson’s appearance.[52] The motion asked for a hearing no earlier than January 13. Roberson did not testify on December 20, and it remains to be seen whether he will testify before his execution date.[53] A new execution date has not yet been set.[54]

 

[1] In re Tex. House of Representatives, No. 24-0884, 2024 Tex. LEXIS 991 (Tex. Nov. 15, 2024).

[2] Id. at *3.

[3] Id. at *4.

[4] See Roberson v. State, 2007 Tex. Crim. App. Unpub. LEXIS 1175 (June 20, 2007).

[5] Texas is one of two states (the other being Oklahoma) with a bifurcated final appellate court. The Texas Court of Criminal Appeals is the final appellate court for all criminal cases in Texas. Tex. Const. art. V, § 5(a). The Texas Supreme Court has final appellate jurisdiction over all other matters. Id. § 3(a).

[6] Roberson, 2007 Tex. Crim. App. Unpub. LEXIS 1175 at *12; In re Tex. House of Representatives, 2024 Tex. LEXIS 991, at *5 (citing Ex parte Roberson, No. WR-63,081-05, 2024 WL 4504434, at *1 (Tex. Crim. App. Oct. 16, 2024); Roberson v. Stephens, 619 F.App’x 353, 359 (5th Cir. 2015)).

[7] Id.; see also Roberson v. Texas, No. 24–5753, 2024 U.S. LEXIS 4334, at *1 (U.S. Oct. 17, 2024) (denying cert).

[8] See Erik Ortiz & Nick McElroy, Texas Man Could Be First to Be Executed In Case of 'Shaken Baby' Death, NBC News (Oct. 3, 2024), https://www.nbcnews.com/news/us-news/texas-inmate-robert-roberson-first-us-execution-case-shaken-baby-death-rcna173437.

[9] Criminal Procedure Related to Capital Punishment and New Science Writs Under Article 11.073, Code of Criminal Procedure: Hearing Before Tex. H. Comm. on Crim. Jurisprudence, 88th Leg. (Tex. 2024), available at https://capitol.texas.gov/tlodocs/88R/schedules/html/C2202024101610001.htm.

[10] See Kayla Guo, With Little Say Over Robert Roberson’s Fate, Texas Lawmakers Take Extraordinary Steps to Buy Him More Time, Tex. Trib. (Oct. 17, 2024), https://www.texastribune.org/2024/10/17/texas-execution-robert-roberson-subpoena/.

[11] Tex. Code Crim. Proc. Ann. art. 11.073 (West 2015).

[12] Ex parte Roberson, No. WR-63,081-04 (Tex. Crim. App. Sept. 11, 2024) (not designated for publication), available in Pet. for Cert. App. at 2a–4a, Roberson v. Texas, No. 24-5753 (U.S. filed Oct. 15, 2024), available at https://www.supremecourt.gov/DocketPDF/24/24‑5753/328406/20241015222722448_Appendices%20A-I.pdf.

[13] Guo, supra note 10.

[14] Meeting Minutes, Criminal Procedure Related to Capital Punishment and New Science Writs Under Article 11.073, Code of Criminal Procedure: Hearing Before Tex. H. Comm. on Crim. Jurisprudence, https://capitol.texas.gov/tlodocs/88R/minutes/html/C2202024101610001.htm.

[15] In re Tex. House of Representatives, 2024 Tex. LEXIS 991, at *2, *26 (citing Tex. Const. art. IV, § 11(b)).

[16] Id. at *6.

[17] In re Tex. Dep't of Criminal Just., No. WR-96,121-01, 2024 Tex. Crim. App. LEXIS 768, at *3 (Tex. Crim. App. Oct. 17, 2024). The Court of Criminal Appeals asserted jurisdiction and issued a writ of mandamus to protect that court’s mandate issued in Roberson’s other cases. Id. at *3–*4.

[18] In re Tex. House of Representatives, 2024 Tex. LEXIS 991, at *6–*7.

[19] In re Tex. House of Representatives, 2024 Tex. LEXIS 951, at *1 (Tex. Oct. 17, 2024).

[20] In re Tex. House of Representatives, 2024 Tex. LEXIS 991, at *7.

[21] Id.

[22] Id. at *10.

[23] Id. at *8–*10.

[24] Id. at *12; see also supra note 5 (explaining the jurisdictional split between the Texas Supreme Court and Texas Court of Criminal Appeals).

[25] In re Tex. House of Representatives, 2024 Tex. LEXIS 991, at *12–*13 (quoting Johnson v. Eisentrager, 339 U.S. 763, 778 n.10 (1950)).

[26] Id. at *13–*14 (internal quotation marks omitted).

[27] Id.

[28] The court dispensed with two other jurisdictional arguments by finding that TDCJ is subject to the court’s mandamus authority and that mandamus authority includes the power to issue injunctions to enforce a legislative subpoena. Id. at *16–*17.

[29] Id. at *17.

[30] Id. at *20–*23.

[31] Id. at *17–*19, *23.

[32] Id. at *24.

[33] Id. (citing Tex. Code Crim. Proc. Ann. art. 43.15(a) (West 2015)).

[34] Id. (citing Tex. Const. art. II, § 1).

[35] Id. at *26–*27.

[36] Id. at *26 (citing Tex. Const. art. IV, § 11(b); Tex. Gov't Code Ann. § 508.031(a) (West 2004)).

[37] Id.

[38] Id. (“Indeed, a subpoena that requires canceling an execution provides the inmate with greater relief than a gubernatorial reprieve.”).

[39] Id. at *27.

[40] Id. at *28–*29.

[41] Id. at *33; Ex parte Roberson, No. WR-63,081-04 (Tex. Crim. App. Sept. 11, 2024). (not designated for publication), available in Pet. for Cert. App. at 2a–4a, Roberson v. Texas, No. 24-5753 (U.S. filed Oct. 15, 2024), available at https://www.supremecourt.gov/DocketPDF/24/24‑5753/328406/20241015222722448_Appendices%20A-I.pdf.

[42] In re Tex. House of Representatives, 2024 Tex. LEXIS 991, at *33, *36.

[43] Id. at *34.

[44] Id. at *35.

[45] Id. at *35–*36.

[46] Id. at *36–*37, *40 (“Legislative investigatory power, even at its maximum, is insufficient to forestall a long-scheduled execution under the circumstances presented here.”).

[47] Id. at *36. The court recognized the balance of power would be different if the death penalty were enforced without notice, but Texas law precludes such an occurrence. Id. at *31.

[48] Tex. Code Crim. Proc. Ann. art. 43.141(c) (West 2015).

[49] In re Tex. House of Representatives, 2024 Tex. LEXIS 991, at *40.

[50] Id.

[51] Kayla Guo, Texas House Panel Subpoenas Death Row Inmate Robert Roberson a Second Time, Tex. Trib. (Dec. 17, 2024), https://www.texastribune.org/2024/12/17/texas-robert-roberson-subpoena-ken-paxton/.

[52] Motion for Protective Order, In re Tex. Dep’t of Crim. Just., No.  (Polk Cnty. Dist. Ct. filed Dec. 19, 2024), available at https://www.texasattorneygeneral.gov/sites/default/files/images/press/Roberson%20Motion%20for%20Protection%20Filed.pdf.

[53] Fred Cantu & Tara Brolley, Death Row Inmate Robert Roberson Will Not Testify Texas House Committee Hearing, CBS Austin (Dec. 20, 2024), https://cbsaustin.com/news/local/death-row-inmate-friday-appearance-at-texas-capitol-still-in-question.

[54] Kiara Alfonseca, Death Row Inmate Robert Roberson No Longer Expected to Speak Before State House Committee, ABC News (Dec. 20, 2024), https://abcnews.go.com/Politics/death-row-inmate-robert-roberson-expected-speak-state/story?id=116904439.

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