Texas can schedule Robert Roberson’s execution — but lawmakers still expect his testimony first

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Texas can proceed with scheduling the execution of death row inmate Robert Roberson despite his claims of innocence and calls for a new trial. But a Texas House committee, whose members believe Roberson was convicted based on junk science, still expects him to provide them with testimony about his conviction and appeals.

Roberson was convicted of capital murder in 2003 for the death of his 2-year-old daughter, Nikki, who was diagnosed with shaken baby syndrome.

In October, Roberson’s execution was halted at the 11th hour after the Texas House Criminal Jurisprudence Committee subpoenaed him to testify. That set off a separation of powers conflict between the legislative and executive branches, with the Texas Supreme Court staying Roberson’s execution to consider which branch’s authority trumped whose in this circumstance.

The court ruled Nov. 15 that a legislative committee’s authority to compel testimony through a subpoena could not be used to override the executive branch’s authority to carry out Roberson’s death sentence as scheduled.

That allows the prosecuting district attorney to now request the scheduling of a new execution date. A new date cannot fall within 90 days of the request. Anderson County District Attorney Allyson Mitchell, who sought Roberson’s last execution date, did not respond to a message asking if and when she intended to request a new execution warrant.

After the Nov. 15 court ruling, Gretchen Sween, Roberson’s attorney, asked the state to refrain from requesting a new date.

“The ancillary benefit to Mr. Roberson of staying his execution hopefully gives time for those with power to address a grave wrong to see what is apparent to anyone who gives the medical evidence fair consideration: his daughter Nikki’s death was a tragedy not a crime; Robert is innocent,” Sween said in a statement.

Roberson’s attorneys have at least three months to file any new appeals in his criminal case. The courts have denied all of his appeals thus far, most recently on procedural grounds — so it was unclear what remaining legal recourse he had.

Gov. Greg Abbott also has the authority to grant a one-time 30-day reprieve. But he had declined to do so leading up to Roberson’s scheduled execution in October, and he excoriated House lawmakers for interfering in Roberson’s sentence.

Though the Texas Supreme Court cleared the way for Roberson’s execution, it also noted that there was now plenty of time for the Texas Department of Criminal Justice to produce Roberson for testimony in response to the legislative subpoena.

“If the committee still wishes to obtain his testimony, we assume that the department can reasonably accommodate a new subpoena,” Justice Evan A. Young wrote. “To the extent that an accommodation is not forthcoming, so long as a subpoena issues in a way that does not inevitably block a scheduled execution, nothing in our holding prevents the committee from pursuing judicial relief in the ordinary way to compel a witness’s testimony.”

After the court’s decision Nov. 15, State Reps. Joe Moody, D-El Paso, and Jeff Leach, R-Plano, who have spearheaded the effort to win Roberson a new trial, said in a statement that they would seek to follow through on the committee’s subpoena to obtain Roberson’s testimony.

“The Supreme Court strongly reinforced our belief that our Committee can indeed obtain Mr. Roberson's testimony and made clear that it expects the Executive Branch of government to accommodate us in doing so,” Moody and Leach said in a statement. “That has been our position all along, and we look forward to working with the Executive Branch to do just that.”

Roberson had been set to testify in person at the Capitol on Oct. 21, until Attorney General Ken Paxton’s office stepped in and said Roberson could only appear virtually. Roberson’s attorney and the Texas House committee objected, arguing that the death row inmate, who has autism, would be ill-equipped to testify effectively over video.

House lawmakers then planned to go to death row to take Roberson’s testimony there, before Paxton’s office also scuttled that effort, according to a recounting of events included in the lawmakers’ court filing.

Paxton’s office did not immediately respond to a message Nov. 15 asking if it would allow the Texas Department of Criminal Justice to produce Roberson for testimony.

The House committee could issue a new subpoena, which it could ask a court to enforce if it encounters resistance from Paxton’s office or TDCJ.

TDCJ did not respond to a request for comment Nov. 15.