Supreme Court of Texas Holds House Committee’s Subpoena Cannot Be Judicially Enforced to Cancel Roberson Execution

The decision

On November 15, 2024, the Supreme Court of Texas denied a petition by a committee of the Texas House of Representatives that sought to enforce a subpoena for testimony from death-row inmate Robert Roberson, issued the day before his scheduled execution. The court held that the Texas Constitution’s separation-of-powers provision and its separation-of-powers jurisprudence “do not permit judicial enforcement of a legislative subpoena that would require canceling a long-scheduled execution.” The decision superseded the court’s October 17, 2024 order, which had temporarily blocked the execution.

The opinion states that the dispute “has nothing to do with Roberson’s guilt or innocence or with the propriety of his sentence, and we express no view on any of those criminal-law matters.”

Background

According to the opinion, Roberson was sentenced to death in 2003 for killing his two-year-old daughter. His direct appeal and habeas petitions were unsuccessful. The Court of Criminal Appeals stayed an execution set under a 2016 death warrant; the opinion states that the stay was granted to address article 11.073 of the Code of Criminal Procedure, which allows habeas relief when a person shows he would not have been convicted had certain scientific information been presented at trial. On July 1, 2024, the district court issued a new warrant setting the execution for October 17, 2024. Later efforts to stop the execution in court or to obtain executive-branch relief were unsuccessful.

On October 16, the House Committee on Criminal Jurisprudence issued a subpoena summoning Roberson to testify at the Texas State Capitol on October 21. According to the committee, it wished to question him about his case and its implications for article 11.073 after learning additional facts from other witnesses at a hearing earlier that day.

Several hours before the scheduled execution on October 17, the U.S. Supreme Court denied Roberson’s application for a stay of execution and his petition for a writ of certiorari. Also on October 17, the committee sued the Texas Department of Criminal Justice in state district court, seeking to prevent the execution so that Roberson could comply with the subpoena. The district court signed a temporary restraining order, and the Court of Criminal Appeals granted the department’s petition for mandamus. The committee then turned to the Supreme Court of Texas, which issued an order temporarily enjoining the department from “impairing Mr. Roberson’s compliance with the Subpoena and Writ of Attachment issued by the Committee on Criminal Jurisprudence, including by executing Mr. Roberson, until further order of this Court.”

The court’s reasoning

The opinion, by Justice Evan A. Young, framed the question as “whether the legislature’s authority to compel testimony requires the other branches to yield in the face of a scheduled execution.” The court stated that its decision to deny relief was “based not on a lack of jurisdiction, but on the merits.”

Jurisdiction

The department argued that the court lacked jurisdiction because an order blocking a lawful execution would violate the separation of powers. The court responded: “This objection, however, relates not to jurisdiction but to the merits.” It noted that the death warrant for October 17 and the subpoena for October 21 “were mutually exclusive commands; the department could not obey both.”

The department also argued that the court was exercising criminal habeas jurisdiction. The court wrote: “That contention is doubly wrong.” It stated that an order would not require Roberson to be brought into court or question the lawfulness of his sentence, and that whether the legislature may temporarily prevent an execution by subpoena “is a civil-law question.” The court added that its temporary order “did not command the Court of Criminal Appeals to do anything.”

The court also rejected the department’s objection that it and its officials were beyond the court’s writ authority. As to the argument that the court lacked original jurisdiction to issue a writ of injunction, the court stated that it “may construe the committee’s petition as seeking a writ of mandamus.”

Competing powers

The court treated each branch’s claim of authority as valid. It described the legislature’s power to compel testimony as broad, but it stated that the power does not automatically displace the judiciary’s authority to render judgment and pass sentence, the executive branch’s clemency authority (including the governor’s authority to stay an execution for up to 30 days), or an agency’s duty to comply with a valid warrant of execution. The court described legislative investigative authority as “at its nadir when its invocation would thwart the considered and long-planned work of the other two branches.”

As to the judiciary, the court stated that “[a] death warrant is not merely permission for the department to execute an inmate if it chooses.” As to the executive, it reasoned that because at least 90 days must pass after a warrant expires, “a subpoena that requires canceling an execution provides the inmate with greater relief than a gubernatorial reprieve.” Categorically giving priority to a legislative subpoena over a scheduled execution, the court wrote, “would become a potent legal tool that could be wielded not just to obtain necessary testimony but to forestall an execution.” The court also reasoned that the legislature itself created the capital-punishment framework, so that “a legislative committee that thwarts an otherwise lawful execution also thwarts the legislature’s own command that the laws be enforced.”

Rejecting the committee’s argument that the conflict was a temporary overlap that could be accommodated, the court described the situation as “multiple ships demanding the same moorings at the same dock.”

The holding

According to the opinion, Roberson was convicted in 2003, article 11.073 became law in 2013, and the October execution date was set on July 1, 2024. The court stated that the committee “could have availed itself of any number of past opportunities to obtain his testimony” and “does not explain why it held the hearing the day before the execution.” It added that the committee “has not shown that only Roberson (or a similarly situated future inmate) has the information the committee seeks.”

The court described its holding as “a narrow but necessary limit on the legislature’s investigatory power.” It stated that it was not foreclosing the executive branch from accommodating even a late legislative request, but that such a result “is not a judicially enforceable right that a civil court may impose against an executive branch that is unwilling to use its authority in that way.”

The committee argued that Government Code section 301.028, which requires state agencies to assist legislative committees, obligated the department to honor the subpoena. The court concluded that the statute “can only command the other branches of government to provide assistance that is consistent with the structure of our government.” The court also said that if the governor granted a reprieve and the department ignored it, “it may be appropriate for the courts to order the department to comply.”

Issues not decided

The department argued that the subpoena was procedurally defective and questioned the legislators’ motivations. Some House members, appearing as amici, argued that the committee did not represent the full House. The court wrote: “We need not decide these points.” For purposes of its holding, the court assumed that the subpoena was valid and that its authority was attributable to the legislative branch.

Separate opinions

No separate opinions accompanied the November 15, 2024 opinion of the court.

Earlier, on October 17, 2024, when the court granted the motion for emergency relief, Justice Young filed an opinion concurring in that grant, joined by Chief Justice Hecht and Justice Huddle. He wrote that the questions raised by the conflict between the legislature’s subpoena power and enforcement of a death sentence “implicate the separation of powers at a high level,” that some separation-of-powers issues “are not justiciable but must be resolved by the other two branches, and this may be such a case,” and that “the district court did not abuse its discretion in granting a TRO to prevent the case from becoming moot.” He added that, while expressing no views on the outcome, in his view “the district court should proceed to the underlying merits with maximum expedition, subject to this Court’s review,” and that “[m]y vote is contingent on that understanding of the limited role of the litigation below.”

Status

Without hearing oral argument, the court denied the committee’s petition for writ of mandamus. It stated: “Today’s decision supersedes our order of October 17, 2024, which has no further effect.” The court’s orders for that day list the October 17 stay order as lifted.

The opinion states: “If the committee still wishes to obtain his testimony, we assume that the department can reasonably accommodate a new subpoena.” It adds that, as long as a subpoena does not inevitably block a scheduled execution, nothing in the holding prevents the committee from seeking judicial relief in the ordinary way.

On the day of the decision, two House members involved in the committee’s effort, including its chair, said in a joint statement that the ruling reinforced their belief that the committee could obtain Roberson’s testimony, according to NBC News and CNN. The Texas Tribune reported that the lawmakers still expected to hear his testimony. Roberson’s attorney asked the state not to set a new execution date, according to NBC News and CNN. CNN reported on November 15 that no new date had been set.