Judge refuses to invalidate Texas' new execution procedures

Two death row inmates said change in lethal drug was not done according to law.

By Steven Kreytak

A state district judge in Travis County on Friday refused to invalidate Texas' new procedure for executing murderers after finding that state law allows prison officials to make certain decisions without public scrutiny.

Lawyers for two condemned inmates claim in a lawsuit that in changing one of the drugs administered to kill inmates, officials failed to comply with the Texas Administrative Procedure Act .

That law, they said, compels officials to subject the new procedures to public scrutiny, including public review and comment periods, before they are implemented.

In rejecting the inmates' request for a temporary injunction, Judge Stephen Yelenosky sided with the Texas Department of Criminal Justice, whose case was argued by the attorney general's office.

"There's only one way to read this," Yelenosky said. He then quoted the law: "This chapter does not apply to a rule of the Texas Department of Criminal Justice that applies to an inmate."

Lawyers Bryce Benjet and Maurie Levin, who represent plaintiffs Cleve Foster and Humberto Leal, argued that the exemption was intended to apply only to prison disciplinary policies and procedures. They said they would appeal to the 3rd Court of Appeals in Austin.

Foster is slated for execution Tuesday. Leal, a Mexican citizen, is scheduled for execution July 7.

Levin said the issue is not just "important to inmates, but to the citizens of Texas."

"It's about state officials making decisions in the light of day," she said.

The new procedure replaces sodium thiopental with pentobarbital as one of three drugs used in lethal injections. The change was necessary because in the past year, the only U.S. supplier of sodium thiopental discontinued production.

According to his lawsuit, Foster has since November 2010 sought information on how prison officials planned to execute him, including through public information requests. The suit claims that prison officials delayed their response and made the decision to change drugs without required public input — or input from Foster and other condemned convicts.

According to the suit, the Criminal Justice Department announced March 16 — less than three weeks before Foster's scheduled execution — that it would change the drugs used.