Judge rules against expired drugs
Jan. 10—District court rules in favor of four death row prisoners, including one facing execution tonight, preventing the State from using unsafe, expired drugs in executions
AUSTIN — Honorable Catherine A. Mauzy, Judge of the 419th District Court of Travis County, ruled that the Texas Department of Criminal Justice (TDCJ) is violating state laws by using, for the purposes of executions, compounded pentobarbital that expired as far back as 2019 today.
The ruling has direct effect on today's execution of Robert Fratta. The ruling says the execution can happen, but must do so legally and not with expired drugs. Robert C. Hurst, Public Information Officer for TDCJ, said he is not privy to information involving what drugs are in stock and not expired.
The Texas Attorney General asked the Court of Appeals last week to prevent Mauzy from ruling on the case, 7-2. The Court of Appeals must now decide if the case is civil or criminal. According to Jason Clark, Chief of Staff with the Texas Department of Criminal Justice, if the court says this is a civil matter, the execution may not take place. The death warrant expires at midnight.
"I visitied with Fratta this afternoon and he was nervous and interested in the case," Clark said. "The drugs available to be used are within use date and tested for potency."
Clark added that this is not the first time that dates have been challenged and TDCJ's stance continues to be that the drugs are not being used to heal an ailment.
Following a nearly three-hour hearing earlier today, Judge Mauzy granted the petition of four death row prisoners, issuing a temporary injunction that prohibits TDCJ from injecting the prisoners with expired drugs in violation of the Texas Pharmacy Act, the Texas Controlled Substances Act, the Texas Food, Drug, and Cosmetic Act, and the Texas Penal Code.
"Today's ruling sends the message that the Texas Department of Criminal Justice is not above the law and that Texas must follow its own law when carrying out executions," said Shawn Nolan, an attorney for Mr. Ruiz and Mr. Balentine.
The death row plaintiffs' lawsuit was initially filed in December by Wesley Ruiz and John Lezell Balentine, whose executions are scheduled for Feb. 1 and Feb. 8, respectively. Robert Fratta, whose execution had been scheduled for 6 p.m. tonight, had joined the lawsuit, along with Arthur Brown who is scheduled for execution on March 9, 2023. Today's ruling prevents Texas from using the expired drug in tonight's scheduled execution.
The death row prisoners' petition, which was granted today in part, and its supporting attachments.
Recognizing that on Jan. 5, a divided Texas Court of Criminal Appeals (CCA) ruled that Judge Mauzy is ordered to refrain from issuing any order purporting to stay the prisoners' executions.
Compounded drugs have limited useful lives, and expired compounded drugs are unreliable and unpredictable. The petition explains that the expired, compounded execution drugs "will act unpredictably, obstruct IV lines during the execution, and cause unnecessary pain." (Petition p.2) Further, by using expired execution drugs, the State is violating the Texas Pharmacy Act, the Texas Controlled Substances Act, the Texas Food, Drug, and Cosmetics Act, and the Texas Penal Code. (Petition p.2)
In a supporting declaration and during testimony at today's hearing, Dr. Michaela Almgren, Pharm.D., M.S., a pharmacology professor at the University of South Carolina School of Pharmacy, explained that Texas' pentobarbital is "far beyond" the specified Beyond Use Date. (Almgren dec., Ex. D, para. 14). She also explained that Texas' purported extension of that Beyond Use Date is based on a method that is "completely unscientific and incorrect, and therefore the result is invalid." (Almgren dec. para. 21).
