At the offset of a much-anticipated hearing, Texas lawmakers expressed doubt Robert Roberson III, the East Texas man whose execution was halted last week after a House committee issued an unprecedented subpoena for his testimony on a date after he was scheduled to die, would appear in person to testify.
Rep. Joe Moody, the El Paso Democrat who chairs the House Committee on Criminal Jurisprudence, said he does “not believe” Roberson will testify at the Capitol on Monday but left the door open to a later date.
When Roberson could testify is unclear. Moody said the committee is in talks with the state attorney general’s office on how to comply with the subpoena. The attorney general’s office has said Roberson would be made available via teleconference because of security and safety concerns with bringing a man on death row to the Capitol.
“Our committee simply cannot agree to video conference,” Moody said. Roberson’s testimony, the lawmaker added, would be undercut by his autism. “That doesn’t mean Robert won’t testify at all.”
The Texas Department of Criminal Justice, which handles the prison system and carries out executions, has not responded to emailed inquiries Monday. The Texas Attorney General’s Office also did not immediately respond to an emailed inquiry.
Roberson, 57, was sentenced to death in 2003 for the death of his 2-year-old daughter, Nikki. He was scheduled to be executed Thursday evening by lethal injection in Huntsville, but a bipartisan group of lawmakers says Roberson may be innocent.
The purpose of the Monday hearing, lawmakers have said, was to explore the state’s 2013 “junk science” law allowing people to challenge convictions with new science and how it was applied in Roberson’s case.
Hours after Roberson had been scheduled to die Thursday, the Texas Supreme Court stayed the execution upholding the subpoena, which was granted earlier in the day by a Travis County judge. The unprecedented decision by the high court, which handles civil matters, has drawn separation-of-powers concerns, including from Attorney General Ken Paxton and Gov. Greg Abbott.
A three-page letter sent to the state Supreme Court Sunday by James Sullivan, Abbott’s general counsel, said only the governor has the constitutional authority to delay an execution — something Abbott has done just once.
The letter marked the first time Abbott has publicly commented on Roberson’s case. It argues Abbott’s office said the Texas Constitution grants him – not the House committee – the power to halt an execution.
In its Sunday order, the state Supreme Court instructed all of the parties to file briefs with their arguments concerning the pending separation-of-power issues, setting deadlines for the coming weeks.
During the Monday hearing, Moody said the committee could take a “heavy-handed approach” to enforce the subpoena, the validity of which was upheld by the Texas Supreme Court late Sunday and remained active during the start of the hearing.
Moody did not elaborate on the possible recourse the committee could pursue, saying instead the committee had not issued the subpoena to “create a constitution crisis.”
“In fact, we have the greatest respect for every other facet of our government and we want … all of them to come together in our purpose here, which is making sure that Robert is heard,” Moody said.
Failure to comply with a subpoena can be punishable as contempt by either the court or agency issuing the subpoena. The punishment can include monetary sanctions and imprisonment, though the latter is rare.
Regardless of the outcome of the Monday hearing, the state Supreme Court’s stay on Thursday has punted the case back to the convicting district court in Anderson County, where the district attorney could seek a new execution warrant.
That warrant, if approved by a judge, would set an execution date no sooner than 90 days from the date the judge grants the order. Should the district attorney seek a new warrant, Roberson’s possible execution date would be in early 2025 at the earliest.
The hearing was ongoing at Monday afternoon.
