How disagreements about a Texas death row inmate’s guilt became a legal battle between branches of government

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

The state's highest civil court temporarily paused Roberson's execution last month after the House Criminal Jurisprudence Committee subpoenaed the man on Oct. 16, calling on the 57-year-old East Texan convicted of killing his 2-year-old daughter to testify about his criminal case at the Texas Capitol four days after his scheduled execution.

That subpoena triggered an unprecedented question about the state constitution's separation of powers — does the legislative members' subpoena take precedence over the executive branch's power to implement 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 in 2002 had fallen off the bed at the family home in Palestine before he rushed her to the emergency room. A doctor diagnosed Nikki with shaken baby syndrome, which presumes abuse.

Roberson's defense attorney did not dispute the diagnosis during trial, only arguing 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 point to naturally occurring medical conditions.

In multiple appeals over the past two decades, experts raised evidence that Nikki had undiagnosed pneumonia in the days before her fall and that it progressed to the point of sepsis and suppressed her breathing. She was also prescribed medications no longer given to infants.

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

Why the Texas House committee sued: Committee members say they called on Roberson to testify after hearing expert testimony about Texas' 2013 junk science law, which allows courts to overturn a conviction when the scientific evidence at the center of the case has been discredited. Roberson has tried unsuccessfully to use the law to win a new trial.

After the House committee issued the subpoena, they obtained a temporary restraining order from a Travis County civil court to halt Roberson's execution. Paxton then filed a petition in the Criminal Court of Appeals on behalf of TDCJ, asking the state's highest criminal court to vacate that decision because the civil court didn't have jurisdiction over the matter. The appeals court decided in Paxton's favor.

But the House committee responded by filing an emergency motion with the Supreme Court of Texas, the state's highest civil court. The House argued that the Court of Criminal Appeals did not have jurisdiction over the case because a subpoena is a civil matter. The Supreme Court issued a temporary injunction halting the execution and asked each side to supply legal briefs before issuing a final judgment.

What the state says: Paxton asserts that the court's order forcing the state to halt a lawfully imposed criminal judgment "flouts the separation of powers."

"The relief sought by the House Committee here usurps the Governor's exclusive prerogative to grant one thirty-day reprieve in a capital case," Paxton's office writes in a legal brief. "The Constitution's specific grants of authority to the CCA and the Governor with respect to criminal judgments and temporary reprieves, respectively, thus necessarily trump any general subpoena power."

What the House committee says: Lawmakers, including committee Chair Joe Moody, D-El Paso, and committee member Jeff Leach, R-Plano, argue that Paxton's office has prevented TDCJ from complying with the subpoena and letting Roberson testify. They say issuing the subpoena didn't assume the powers of another branch because Roberson's execution was only temporarily halted and lawmakers are constitutionally allowed to hear testimony in order to inform policy making.

"Given the dispute over some facts in Roberson's case, the Committee deemed it essential to hear from him personally to judge his credibility as a witness," House members argued in a legal brief.

Broader impact: The state supreme court's decision in this case is unlikely to directly impact whether or not Roberson is awarded a new trial, as that decision would be made by a criminal court. But it could have repercussions for the Legislature's subpoena power. And testimony by a death row inmate at the state Capitol about his case would be historic.

In January, three of the five Criminal Court of Appeals judges who allowed Roberson's execution to move forward will no longer be on the court. If Roberson's case somehow makes it back before that court and any of the new judges take a different stance, the votes could shift in Roberson's favor.

The court's decision will also answer a novel legal question about whether a legislative subpoena or an execution order takes precedence.

"I think that what we are seeing is checks and balances of different branches of government, which is what the constitutional vision was in the United States and was largely replicated in Texas," said Marc Levin Chief Policy Counsel on the Council on Criminal Justice. "It's healthy for that to occur."

This originally appeared in The Texas Tribune at