Texas Has Dug a Deep Hole It Can’t Escape on a Particularly Thorny Issue

This piece was originally published on State Court Report, a hub for reporting, analysis, and commentary about state courts and constitutions. The Texas Court of Criminal Appeals, the state’s court of last resort for criminal cases, declined to reconsider its past decisions, paving the way for Roberson’s execution. The committee then went to the Texas Supreme Court, which at the last minute temporarily blocked the execution while it considered whether the Legislature’s subpoena power could stall an execution. Meanwhile, the committee has thus far been stymied in its efforts to have Roberson testify, though the state Supreme Court made a point of noting that the committee had time to allow Roberson’s testimony, with the prospect of “judicial relief in the ordinary way to compel a witness’s testimony.” State Attorney General Ken Paxton refused to allow Roberson to testify in person at the October hearing, citing vague public safety concerns and suggesting virtual testimony instead. The basis of the jurisdiction it claimed was to “resolve as a matter of law which branch’s authority must prevail” when the death warrant and subpoena “were mutually exclusive commands” and the state’s criminal justice department “could not obey both.” But given that neither the Texas Supreme Court nor the Texas Court of Criminal Appeals takes orders from the other, an extreme version of a case like this could easily pit one court’s mandate over another.