Well, No

Texas is foaming at the mouth with lust for death https://t.co/rAnyX2L6HH

— Bradley P. Moss (@BradMossEsq) October 18, 2024

I despise the death penalty; but this is not a death penalty case. There is a more bloodless and actually (well, to me, because it’s actual, not wishful thinking) more interesting legal issue raised by the Court’s decision.

Here is the Texas Court of Criminal Appeals ruling vacating the preliminary injunction. Four judges dissented. https://t.co/uBL1EZRU4g @TexasHouse @TexDefender @TCADPdotORG @texasccatdp @innocence @WTIUSA #deathpenalty pic.twitter.com/9hecneCYdi

— Robert Dunham (@RDunhamDP) October 18, 2024

Roberson was convicted of capital murder in February, 2003. He filed four  different applications for writ of habeus corpus, each of which was denied.

On October 26, the Texas House of Representatives Committee on Criminal Jurisprudence issued a subpoena for Roberson to appear for a hearing on October 21, 4 days after his scheduled execution. On October 27, the committee sought and won a temporary injunction suspending the execution.

Paxton, on behalf of the Texas Department of Criminal Justice, challenged that decision in the Texas Court of Criminal Appeals, which vacated the TRO.

Now, should they have done that?

Here is the dissent by Judge Newell, joined by Judges Richardson, Walker, and McClure. https://t.co/EhzSDDRyo6 @TexasHouse @TexDefender @TCADPdotORG @texasccatdp @innocence @WTIUSA #RobertRoberson #Texas #deathpenalty pic.twitter.com/Kc9YeRy6Ap

— Robert Dunham (@RDunhamDP) October 18, 2024

The dissent says the Court argues the “Legislature seeks to vindicate its own authority to subpoena witnesses for testimony before it.” That raises a separation of powers issue, and whether the Court of Criminal Appeals has mandamus jurisdiction in such circumstances. These issues, the dissent argues, should be argued in court and decided by the Court of Criminal Appeals, not swept aside.

Which makes me wonder if the Committee will take an emergency appeal to the Texas Supreme Court.

Texas has, as you may have guessed, two supreme courts. The civil court is superior to the criminal court in civil matters. What prevails here; the death penalty mandamus after four rejected appeals? Or the civil court, on the issue of separation of powers and the Legislature’s authority to enforce its subpoenas? (The Lege, after all, isn’t required to work on the court’s calendar. Or is it?)

I have no idea why the Committee wants to hear from

Robeson. Perhaps they are considering amending Texas Code of Criminal Procedure 11.071, the one Robeson relied on for his appeals. Perhaps not. So it’s really quite a bloodless matter; and my legal sympathies are with the Legislature. I think the Court of Criminal Appeals has overzealously protected its turf, and I’d like to see the Supreme Court assert the interests of the civil law in this matter.

I’d rather see the death penalty abolished, but that’s not this case.

Well, I no sooner published this, than I saw this:

#Breaking Texas Supreme Court stays the execution of #RobertRoberson halting the scheduled execution pic.twitter.com/BxRS9YD2er

— J.D. Miles (@jdmiles11) October 18, 2024

Good. This will be interesting. Unfortunately, it won’t reverse Roberson’s inevitable fate, but it will resolve, one hopes, a question of authority.