Texas House committee demands that attorney general allow Roberson to testify

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The Texas attorney general’s office is deliberately running out the clock on a soon-to-expire House committee to avoid cooperating with its demand that death row inmate Robert Roberson be able to testify before the committee in person, according to the two lawmakers spearheading that effort.

“What the attorney general's office, I feel like is doing right now, is trying to delay, as much as possible, and not work with us,” state Rep. Jeff Leach, R-Plano, told The Texas Tribune during a Friday event exploring the committee’s intervention in the Roberson case.

“They’re basically ignoring the Supreme Court's order, knowing that in a month or so, when the new legislative session convenes, our committee goes away,” he said.

Leach, a member of the House Committee on Criminal Jurisprudence, and the committee’s chair, state Rep. Joe Moody, D-El Paso, appeared Friday at a Texas Tribune event to discuss the historic legislative intervention that halted Roberson’s Oct. 17 execution.

The committee is planning for Roberson to testify in person at the Capitol on Dec. 20, two months after the committee forced a delay of his execution through an extraordinary legal intervention.

The committee is awaiting confirmation from Attorney General Ken Paxton’s office on whether it will voluntarily comply with the panel’s order and allow the state criminal justice department to transport Roberson from prison to the Capitol so he can testify.

Moody discussed how the Texas Supreme Court has told the legislative and executive branches of state government to cooperate on this matter on three separate occasions. But after asking the executive branch if it would agree to produce Roberson, Moody said, its representatives “couldn't answer the simple question of, can we agree or do you want me to issue a subpoena?,” Moody said. “They have refused to answer that very simple question.”

As a result, Moody set the hearing for Dec. 20 and gave the attorney general’s office until the end of the day Friday to answer. If they don’t, Moody said he will issue a new subpoena for Roberson.

“I've been in this business long enough — that's just a foot drag,” Moody said. “So I set the hearing and I gave him a deadline.”

He said he hopes that Texans question the delays by Paxton’s office.

“Why don't they want to hear from Robert? Why do they not want the Legislature to do this? Why?”

The Texas attorney general’s office did not immediately respond to the comments made by Leach or Moody.

It’s the latest in the dramatic back and forth between the two government branches over Roberson’s testimony. The day before Roberson’s scheduled Oct. 17 execution, the House Committee on Criminal Jurisprudence held a hearing airing his claims of innocence and lack of due process. The panel’s surprise move to subpoena Roberson on Oct. 16 then successfully forced a delay in his execution.

Roberson, who has maintained his innocence in the death of his child for more than 20 years, became a political lightning rod in recent months as members of the bipartisan Criminal Jurisprudence Committee — convinced that the courts had not properly applied a 2013 junk science law to his case — waged a controversial campaign to buy him more time.

Roberson was convicted of capital murder in 2003 for the death of his 2-year-old daughter Nikki, who was diagnosed with shaken baby syndrome. He has sought to use the junk science law to vacate his conviction, arguing that new scientific evidence debunked Nikki’s shaken baby diagnosis and showed that she died of undiagnosed pneumonia, not abuse.

The committee’s subpoena prompted the ongoing battle between lawmakers and Paxton’s office over securing Roberson’s testimony. The subpoena also created a separation of powers conflict between the state’s legislative and executive branches, prompting the Texas Supreme Court to stay Roberson’s execution on Oct. 17 as it worked through the legal dispute.

In an Oct. 28 Texas Supreme Court brief, members of the criminal jurisprudence panel accused Paxton’s office of stonewalling and refusing to comply with the subpoena.

“The executive branch has shown no willingness to work out its differences with the legislative branch or meet its statutory duty to assist the Committee,” the brief states.

The criminal jurisprudence panel held a hearing on Oct. 21 with plans for Roberson to give his testimony in person. But Paxton quashed those plans, saying that the inmate would only testify via video, “in the interest of public safety.”

Both the committee and Roberson’s attorney objected to a virtual set-up, saying that Roberson’s autism and lack of technological experience due to his more than two decades in prison meant that he could not testify effectively over video.

Lawmakers then sought to visit Roberson on death row to take his testimony there.

But according to the lawmakers’ brief, Paxton’s office again scuttled those plans, telling Moody that “the executive branch would no longer permit any form of hearing with Roberson.”

Instead, the brief states, the executive branch proposed a joint letter in which Moody and Leach “admit that Roberson was a murderer, that they had overstepped their authority, and that no legislative committee should ever act similarly in the future.”

At the Tribune event, Moody said they had no intent of signing such a letter.

“I've got to censor myself when talking about that letter because I thought someone was joking with me when they sent it to me,” Moody said. “That was a letter that was sent to us, knowing that we would never sign it. It is written in a way that says, make sure that they never sign this, because it was saying, you know, we're idiots, we made a mistake, we're so sorry, Robert's a murderer.”

Paxton, meanwhile, has accused the lawmakers of “sidelining” the Texas Department of Criminal Justice’s legal counsel, and said that nothing compelled the executive branch to bring Roberson to the Capitol.

On Nov. 15, the Texas Supreme Court ruled that legislative subpoenas could not be used to block death warrants, clearing the way for Roberson’s execution.

But the court noted that there was now plenty of time for the Texas Department of Criminal Justice to produce Roberson for testimony. The prosecuting district attorney has not yet requested a new execution date, which could not be set within 90 days of the request.

“If the committee still wishes to obtain his testimony, we assume that the department can reasonably accommodate a new subpoena,” the court said. “So long as a subpoena issues in a way that does not inevitably block a scheduled execution, nothing in our holding prevents the committee from pursuing judicial relief in the ordinary way to compel a witness’s testimony.”

Leach hinted that fighting the committee after the Supreme Court’s decision will have consequences.

“Our AG is doing a lot of really good work,” Leach said. “But look, if you’re going to ignore the Legislature and say, ‘We don’t care about you and we’re not gonna do what the Supreme Court told us to do’ — then if we have to, we’ll be back in front of the Supreme Court. And I don’t think … that should be necessary.”

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