The extraordinary chain of events that culminated in the halting of Robert Roberson's execution turned late Thursday night when the Texas Supreme Court determined that the central question was a matter of civil law on which it was compelled to act amid inaction from Governor Greg Abbott and the state's highest criminal court.
"The underlying criminal-law matter is within the Court of Criminal Appeals’ authority, but the relief sought here is civil in nature, as are the claims that have been presented to the district court," Justice Evan Young in a concurring opinion. "Whether the legislature may use its authority to compel the attendance of witnesses to block the executive branch’s authority to enforce a sentence of death is a question of Texas civil law, not its criminal law."
With Chief Justice Nathan Hecht and Justice Rebeca Huddle joining Young in the analysis on the the rare intervention by SCOTEX in a criminal case, Young acknowledged that the court was in uncharted territory with the red light on the Roberson killing that Abbott appeared content to let take place regardless of actual innocence or guilt.
"We do not have clear precedent on this question; once the question is resolved, future cases would be addressed in light of that resolution," Young wrote. "Moreover, while this case is clearly civil in nature, determining where the line beyond which we should not go, given the Court of Criminal Appeals’ distinct authority, is itself a civil question of great constitutional importance."
The civil issue that the all-Republican Texas Supreme Court faced revolved on the separation of powers and the question of whether state lawmakers have standing in the execution process that's a function primarily of the judiciary and the executive branch. They apparently did not until now.
But that changed when a bipartisan group of Texas House members that seemed highly improbable at first blush decided that the state was preparing to kill an innocent man and that they would do everything in their power to stop it. GOP State Rep. Jeff Leach of Allen took the lead when the committee he chairs approved a motion on Wednesday to subpoena Roberson to a testify at a hearing next week.
Republican State Rep. Brian Harrison of Midlothian submitted the motion to compel the death row inmate's appearance before the Criminal Jurisprudence Committee. Harrison and Leach have been on opposite sides in a bitter internal war among the Republicans in the Texas Capitol's west wing. But the committee voted unanimously for the proposal that set an amazing string of developments in motion but would not have been successful on its own.
While Roberson waited for his life to end in a room near the execution chamber, Leach teamed up with State Rep. Joe Moody, an El Paso Democrat who chairs the panel, on a motion that they filed in a district court in Austin on Thursday afternoon in what appeared to be a desperation Hail Mary after it become clear that Abbott wouldn't use his power to pause the execution.
But after a Democratic state district judge halted the execution based on the House committee's request, the Texas Court of Criminal Appeals overturned the ruling and the U.S. Supreme Court declined the opportunity to intervene as well. The TCCA has a GOP monopoly like SCOTEX.
The Texas Supreme Court's apparently unforeseen diving into the fray came after the House committee sought an emergency injunction to prevent the Texas Department of Criminal Justice and corrections officials from putting Roberson to death before he testifies to the House panel on Monday. The high court left the injunction pending when it issued the 11th-hour stay.
The state legislators behind the frantic push that saved Roberson for the time being expressed jubilation with the SCOTEX action.
“For over 20 years, Robert Roberson has spent 23.5 hours of every single day in solitary confinement in a cell no bigger than the closets of most Texans, longing and striving to be heard," Leach and Moody said in a statement. "And while some courthouses may have failed him, the Texas House has not.
“We look forward to welcoming Robert to the Texas Capitol, and along with 31 million Texans, finally giving him – and the truth – a chance to be heard,” the House pair added.
Harrison - one of the most conservative Republicans at the Capitol in Austin - broke ranks with hard-liners who saw the House committee maneuvering as a RINO stunt.
"I want Texas to lead in basically everything," Harrison said on Friday in a post on X. "But executing potentially innocent people is not one of them."
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