Texas sues FDA over seized execution drugs

Texas on Tuesday sued the U.S. Food and Drug Administration for what it says is an "unreasonable delay" in deciding whether to allow the delivery of execution drugs from India. The lawsuit comes more than 17 months after the FDA seized 1,000 vials of sodium thiopental at a Houston airport.

In July 2015, the Texas Department of Criminal Justice tried to import sodium thiopental, an anesthetic previously used in the state for executions, according to the lawsuit. The drugs have been in the custody of the FDA since then.

In a tentative decision in April, the FDA said the drugs appeared misbranded and unapproved, effectively barring TDCJ from importing the drug, but no final decision has been made. On Tuesday, Texas Attorney General Ken Paxton filed suit in Galveston, imploring the federal court for the southern district of Texas to force the agency to make a final decision. 

In a statement announcing the lawsuit, Paxton said the only two possible reasons for the delay are "gross incompetence or willful obstruction."

“The FDA has an obligation to fulfill its responsibilities faithfully and in a timely manner," Paxton said. "My office will not allow the FDA to sit on its hands and thereby impair Texas’ responsibility to carry out its law enforcement duties.”

Maurie Levin, a capital defense attorney specializing in lethal injection, said it's not surprising that it would take a federal agency a long time to make a decision. But, she added: "The FDA is doing their job. It's Texas that broke the law."

The lawsuit claims the import is legal partially because the drugs are being used solely for “law enforcement” purposes — in this case, executions. The corrections department had obtained an import license from the Drug Enforcement Administration before purchasing the drugs, according to Jason Clark, a spokesman for the Texas Department of Criminal Justice.

A spokeswoman for the FDA would not comment on pending litigation, but the agency has previously maintained that the import of the drug is illegal because it is not currently approved in the United States. 

Texas hasn’t used the drug in executions since 2011, when it was part of a three-drug cocktail. The state has used only pentobarbital in executions since 2012 and has enough for at least the nine executions currently scheduled, Clark said Tuesday.

“We cannot speculate on the future availability drugs, so the agency continues to explore all options including the continued use of pentobarbital or alternate drugs to use in the lethal injection process,” Clark said.

No state has used sodium thiopental in an execution since Alabama in March 2011, according to the Death Penalty Information Center. 

More on lethal injection:

• In April, the FDA told the Texas Department of Criminal Justice it is tentatively barred from importing a drug used in executions.
• Revealing Texas' supplier of execution drugs could have a harmful effect on the provider and as a result leave the state empty-handed, a lawyer for the state suggested during an appeals court hearing last May.