How a disagreement over the guilt of a Texas death row inmate became a dispute between branches of government

The Texas Supreme Court is weighing whether death row inmate Robert Roberson — whose death sentence was temporarily stayed last month — must testify before a Texas House committee before the state can carry out his execution.

The state’s highest civil court temporarily stayed Roberson’s execution last month after the House Criminal Justice Committee subpoenaed the man on Oct. 16, demanding that the 57-year-old East Texan, convicted of murdering his 2-year-old daughter, speak about his crime to testify in the case at the Texas Capitol four days after his scheduled execution.

That subpoena sparked an unprecedented question about the separation of powers in the state constitution: Does the subpoena of legislative members take precedence over the executive branch’s power to carry out a death sentence, or is it the other way around?

Here’s what you need to know:

The background: Roberson was convicted of murdering his chronically ill 2-year-old daughter, Nikki Curtis, who Roberson said fell out of bed at the family’s Palestine home in 2002 before he took her to the emergency room. A doctor diagnosed Nikki with shaken baby syndrome, which suggests abuse.

Roberson’s defense attorney did not dispute the diagnosis during the trial, arguing only that Roberson did not intend to kill his daughter. But in the years since the trial, new scientific and medical evidence has emerged showing that the symptoms associated with shaken baby syndrome could also indicate naturally occurring conditions.

In several appeals over the past two decades, experts presented evidence that in the days before her fall, Nikki had undiagnosed pneumonia that had progressed to sepsis and suppressed her breathing. She was also prescribed medication that should no longer be given to infants.

During a recent House hearing, a juror in Roberson’s trial said she would not have convicted Roberson if she had been shown all of Nikki’s medical records, including a CT scan and a toxicology report. Gov. Greg Abbott and Attorney General Ken Paxton, meanwhile, maintain that Roberson is guilty and that the case has already been properly decided.

Why the Texas House Committee Sued: Committee members said they asked Roberson to testify after hearing expert testimony about Texas’ 2013 junk science law, which allows courts to overturn a conviction if the scientific evidence at the heart of the case has been discredited. Roberson has unsuccessfully tried to use the law to win a new trial.

After the House committee issued the subpoena, they obtained an injunction from a civil court in Travis County to stop Roberson’s execution. Paxton then filed a petition with the Court of Criminal Appeals on behalf of the TDCJ, asking the state’s highest criminal court to overturn that decision because the civil court had no jurisdiction over the matter. The appeals court ruled in favor of Paxton.

However, the House committee responded by filing an emergency petition with the Texas Supreme Court, the state’s highest civil court. The House argued that the Court of Criminal Appeals had no jurisdiction over the case because a subpoena was a civil matter. The Supreme Court issued a preliminary injunction staying the execution and requiring each side to submit legal briefs before issuing a final ruling.

What the state says: Paxton contends that the court’s order forcing the state to stop a lawfully imposed criminal sentence “violates the separation of powers.”

“The relief sought here by the House committee usurps the Governor’s exclusive prerogative to grant a thirty-day reprieve in a death,” Paxton’s office wrote in a legal brief. “The Constitution’s specific powers to the CCA and the Governor with respect to criminal sentences and temporary reprieves, respectively, necessarily take precedence over any general subpoena power.”

What the House Committee Says: Lawmakers, including Committee Chairman Joe Moody, D-El Paso, and Committee Member Jeff Leach, R-Plano, argue that Paxton’s office prevented TDCJ from complying with the subpoena and allowing Roberson to testify. They say issuing the subpoena did not usurp the powers of another body because Roberson’s execution was only temporarily halted and the constitution allows lawmakers to hear testimony to help them make policy decisions.

“Given the dispute over some of the facts in Roberson’s case, the committee believed it was important to hear him in person to assess his credibility as a witness,” House members argued in a legal briefing.

Wider impact: The state Supreme Court’s decision in this case is unlikely to have a direct impact on whether or not Roberson is granted a new trial, since that decision would be made by a criminal court. However, this could have an impact on the legislature’s subpoena power. And a death row inmate testifying about his case at the State Capitol would be historic.

In January, three of the five appeals court judges who moved forward with Roberson’s execution will no longer be on site. If Roberson’s case somehow ends up back before this court and one of the new justices takes a different stance, the votes could swing in Roberson’s favor.

The court’s decision will also answer a novel legal question about whether a legislative subpoena or warrant takes precedence.

“I think we’re seeing checks and balances between different branches of government, which was the constitutional vision in the United States and which has been largely replicated in Texas,” said Marc Levin, senior policy adviser at the Council on Criminal Justice. “It’s healthy for this to happen.”

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/11/12/texas-robert-roberson-separation-of-powers-subpoena/.

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