AUSTIN — An unprecedented effort by Texas legislators to save death row inmate Robert Roberson from execution last week has created a forceful clash between two branches of government.
On one side are Republican and Democratic members of the Texas House who, fearing the state was preparing to execute a potentially innocent man, issued a never-before-tried subpoena to compel Roberson’s testimony four days after his scheduled execution.
The tactic worked despite efforts by the attorney general’s office to void the subpoena. The life-or-death disagreement intensified Wednesday when Attorney General Ken Paxton released the autopsy report on Nikki Curtis, the 2-year-old daughter Roberson was convicted of killing in 2003.
Lawmakers, Paxton said, ignored glaring evidence of Roberson’s guilt to interfere “with the justice system” to block his execution.
Roberson’s lawyer and committee members disagreed, saying Paxton misstated the case against Roberson and ignored new evidence of his innocence.
Here’s what we know about the power struggle:
What is the Texas House trying to do?
A bipartisan group of 84 representatives in the Texas House last month signed a letter asking the Board of Pardons and Paroles to recommend clemency for Roberson ahead of his Oct. 17 execution date. They expressed “grave concern that Texas may put him to death for a crime that did not occur, as new evidence suggests.”
The lawmakers warned that Roberson could become the first person in America to be executed based on “shaken baby syndrome” — a theory that assumed violently shaking an infant caused tell-tale symptoms that medical professionals now know to have other causes.
A Texas law allows inmates to challenge convictions based on disproven or incomplete science, and lawmakers say under the spirit of that law, Roberson should have been given a new trial.
Five Republicans and four Democrats on the House Criminal Jurisprudence Committee held two marathon hearings on Roberson in the last two weeks.
On Oct. 16, after hearing testimony about new evidence disputing Nikki’s cause of death, they voted 7-0 to subpoena Roberson to testify at the Capitol this week. Monday’s hearing featured testimony from television’s Dr. Phil McGraw, author John Grisham and others who questioned the evidence used to convict Roberson.
Roberson did not testify after Paxton’s agency said he could only appear by videoconference.
Why is Paxton involved?
As attorney general, Paxton is the state’s top legal officer who represents Texas in court. His agency also has law enforcement officers and provides help prosecuting crimes if requested by local officials.
When lawmakers asked a state judge in Travis County to block Roberson’s execution so their subpoena could be enforced, Paxton’s office opposed the move last week, then asked the Court of Criminal Appeals to intervene when a restraining order was granted.
The appeals court sided with Paxton but the Texas Supreme Court intervened, saying Roberson should not be executed until the courts could weigh a novel legal question: Does a subpoena from the Legislature outweigh an executive agency’s authority to carry out a scheduled execution?
In a filing over the weekend, Gov. Greg Abbott told the Supreme Court he opposed the committee’s subpoena, saying it effectively granted clemency to a death row inmate — a power belonging exclusively to the governor, he said. Unless the Supreme Court rejected that effort, Abbott warned, “it can be repeated in every capital case, effectively rewriting the Constitution to reassign a power given only to the Governor.”
Wednesday evening, Paxton challenged the narrative that Roberson was likely innocent, saying he “had a history of violently abusing his daughter” and insisting that evidence presented at his trial showed Nikki “died due to the trauma he inflicted,” not fromshaken baby syndrome.
“A few legislators have grossly interfered with the justice system by disregarding the separation of powers outlined in the State Constitution,” Paxton said. “They have created a Constitutional crisis on behalf of a man who beat his two-year-old daughter to death.”
What was the reaction to Paxton?
State Rep. Joe Moody, an El Paso Democrat who chairs the committee, dismissed Paxton’s statement, saying lawmakers heard testimony from “preeminent experts in law, medicine and psychology” in addition to the lead investigator and a juror.
“There are no new facts in the OAG’s statement, only a collection of exaggerations, misrepresentations, and full-on untruths completely divorced from fact and context,” Moody said in a statement.
Moody also pointed to a social media post from Doug Deason, a self-described conservative activist and donor based in Dallas who called Paxton’s statement “completely unhinged from reality.”
Hard-line conservatives applauded.
State Rep. Tony Tinderholt, R-Arlington, described the autopsy report and Paxton’s statement as scathing and predicted it would be “painful” for Roberson’s supporters to read.
“We must always protect the separation of powers regardless of the topic!” he wrote in a social media post.
Gretchen Sween, Roberson’s attorney, called Paxton’s action “profoundly disturbing.”
Paxton “issued a stunningly misleading statement designed to quash a bipartisan group of lawmakers in their truth-seeking mission, which has riveted the world,” Sween said in a statement. “Why the urgency to execute an innocent, autistic man, with a perfect disciplinary record during the 22 years he has been confined on Texas’s death row, largely without any lawyer willing to investigate his claim of innocence?”
Is this Paxton’s first clash with another state branch?
Last year, 60 House Republicans and 61 Democrats voted to impeach Paxton on charges of corruption and misuse of office. The Senate later voted largely along party lines to acquit him, and Paxton responded by targeting Republicans who voted for impeachment during this year’s primaries.
On the Criminal Jurisprudence Committee, three of the five Republicans and all four Democrats voted in favor of impeachment. Committee member Jeff Leach, R-Plano, voted to impeach and delivered an impassioned plea asking Republican senators to support impeachment during closing arguments in September 2023.
In a statement last month, Paxton celebrated the anniversary of his acquittal, writing that he won “an unprecedented battle against the most corrupt forces in” Texas. He accused legislators of weaponizing the political system “to intimidate, bankrupt, silence and punish me for representing the voters instead of the entrenched political establishment.”
Paxton also campaigned against three Court of Criminal Appeals judges this year, saying they should be replaced for supporting a 2021 ruling that struck down his authority to unilaterally prosecute voter fraud cases. All three judges lost their primary this year.
What happens next?
The Texas Supreme Court has been asked to toss out the subpoena as an invalid use of legislative power. The court gave Texas legislators a Monday deadline to file their brief, with Paxton’s brief due Nov. 4. Legislators have until Nov. 8 to file a reply brief.
The committee also is negotiating to have Roberson testify in person, either at the Capitol in Austin or in Livingston, where Roberson is being held in the Department of Criminal Justice’s Polunsky Unit.
Committee members have rejected having Roberson testify via teleconference, saying the inmate’s autism does not make remote communication feasible.
