The petition in Foster v. TDCJ is available in Adobe .pdf format.
Brandi Grissom posts, "Death Row Inmates Sue Over Lethal Injection Drug," at the Texas Tribune.
TDCJ decided on March 16 that it would use pentobarbital in executions. Texas and other states were forced to find a substitute for sodium thiopental when the only American producer of it, Illinois-based Hospira Inc., announced in January it would stop selling the drug. Hospira had planned to manufacture the drug in an Italian plant, but authorities in that country wanted a guarantee that the drug would not be used in executions.
Texas officials decided to follow the lead of Oklahoma and use pentobarbital in the lethal injection protocol. TDCJ spokeswoman Michelle Lyons said this morning that officials are still reviewing the inmates' case.
The lawsuit filed today in Travis County District Court seeks a declaration that Texas' new execution protocol is void because it doesn't comply with the Administrative Procedure Act. When TDCJ officials failed to notify the public or to allow for a comment period about the change, lawyers for the inmates argue that the agency violated the act. "In its rush to execute Mr. Foster, Texas has violated the law and circumvented the open government process,” Levin said in a statement announcing the lawsuit.
"Lawsuit: Void Texas’ new execution procedure," by Mike Ward for the Austin American-Statesman.
Texas’ new procedure for executing condemned murderers should be invalidated because prison officials did not comply with state law in adopting it, two condemned murderers alleged this morning in a new lawsuit seeking to block their scheduled date with the death chamber.
In a suit filed in an Austin state court, attorneys for Cleve Foster and Humberto Leal contend that Texas’ new execution protocol — replacing sodium thiopental with pentobarbital as one of three drugs used in lethal injections — violated the state Administrative Procedures Act.
Reason: Officials with the Texas Department of Criminal Justice did not follow proper procedure in adopting the new protocol.
According to the suit, TDCJ announced on March 16 — less than three weeks before Foster’s scheduled execution — that it would change the drugs used. Foster is slated for execution on April 5.
The lawsuit contends that since November 2010, Foster made numerous public information requests and pleas for information regarding the drugs TDCJ planned to use to execute him, but prison officials delayed their response and made the decision to change drugs without required public input — or input from Foster and other condemned convicts.
And:
Court officials said no hearing has been set in the case.
If the Travis County court invalidates the change in drugs because state law was not followed, the state would be forced to resort to using the previous drug — which has become unavailable in the United States.
Leal, a Mexican citizen, is scheduled for execution on July 7.
Prison officials said they had no immediate comment on pending litigation. Some officials had earlier said they expected legal challenges when the execution drug was changed.
Some legal experts were critical of the process Texas used to change its lethal drug mix, as well.
“Lack of transparency and the problems that ensue from it constitute one of the largest challenges to ensuring constitutionally viable lethal injection procedures, said Deborah Denno, a law professor at Fordham University and a nationally recognized expert on the death penalty and injection.
“The State of Texas’s under-the-table method for dealing with a drug shortage is unacceptable and adds to the ongoing pattern of debacles the state has experienced since its first-ever lethal injection execution in 1982.”
The AP report, "Lawsuit says Texas execution drug change improper," is by Michael Graczyk, via the San Antonio Express-News.
Attorneys for two condemned Texas inmates filed suit Tuesday challenging the state's change of a drug that would be used in the lethal mixture to execute them.
Texas Department of Criminal Justice officials failed to comply with proper administrative procedures when they announced two weeks ago that pentobarbital — a drug used to euthanize animals — would replace sodium thiopental as one of three drugs used in executions, lawyers for condemned inmates Cleve Foster and Humberto Leal argued in a lawsuit in state district court in Austin.
A nationwide shortage of the sedative sodium thiopental is prompting the drug change.
Foster is set to die April 5 and would be the first Texas inmate to have pentobarbital used as part of the lethal injection. Leal has a July 7 execution date. They are among at least six inmates set to die over the next several months in the nation's most active death penalty state.
According to the lawsuit, the Texas prison agency violated the Texas Administrative Procedures Act, which requires notice and comment, before changing "behind closed doors" the procedure known as the execution protocol.
"I don't think there's any doubt they didn't comply," said Maurie Levin, a University of Texas law professor and one of the attorneys representing the inmates.
"We don't comment on pending litigation," Texas Department of Criminal Justice spokeswoman Michelle Lyons said.
The suit said under the Administrative Procedures Act, a Texas agency changing a rule must give at least 30 days' notice of its intent, must provide interested parties a reasonable opportunity to provide views or arguments regarding the rule change and must hold a public hearing on the change if at least 25 people or an association of more than 25 people request a hearing.
"TDCJ went to great efforts to shield its change in execution procedure from the light of day," the suit said. "Executions, and the manner in which we carry them out, are of unique public interest and importance — these are precisely the sort of policy decisions that should be aired in the light of day.
"There can be no dispute that the adoption of the new protocol did not include the public involvement that the Legislature expects an agency to invite and consider when exercising delegated rulemaking powers."
USA Today reports, "Texas death row inmates sue over execution drugs." It's by Kevin Johnson.
Legal challenges to the way execution drugs are being selected and acquired for lethal injections across the U.S. are now targeting Texas, home to the country's busiest execution chamber.
Attorneys for two condemned inmates urged a state district court Tuesday to halt the executions because they say recent changes to the long-standing lethal injection protocol have been illegally shrouded in secrecy.
A national shortage of sodium thiopental, part of the three-drug cocktail used in lethal injections across the country, has triggered a scramble for execution drugs in Texas and several other states, leading to controversial changes in way death row prisoners are put to death.
One of the condemned inmates in Texas — convicted murderer Cleve Foster, who is scheduled to die April 5 — alleges in court documents that state officials failed to respond to "numerous pleas for information" about how he would be executed. The state acknowledged late last year that its supply of the sedative sodium thiopental was due to expire March 1.
Texas, which has executed 466 inmates since the reinstatement of the death penalty in 1976, announced March 15 that it was replacing sodium thiopental with pentobarbital, a drug used in euthanizing animals. Foster's death would mark the first change in execution drugs used by the state in more than 30 years.
Earlier coverage of the Texas lethal injection drug switch and litigation begins at the link. There will be more lethal injection news in the next post.
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