Attorney General Ken Paxton files motion to block death row inmate Robert Roberson from testifying

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Attorney General Ken Paxton filed a motion Thursday night to block death row inmate Robert Roberson from testifying at the Capitol on Friday in the latest escalation of a political battle between the executive branch and a Texas House committee over Roberson’s case.

The motion asks a district court in Polk County — where the prison that houses death row is located — to allow the state prison system to ignore a Texas House committee’s subpoena ordering Roberson to appear in Austin for testimony.

Paxton wrote on social media that the filing of the motion “automatically excuses” the Texas Department of Criminal Justice from complying with the subpoena pending a hearing and resolution of the motion.

The move is the latest in a tense standoff between Paxton and a bipartisan group of Texas lawmakers who have sought to obtain Roberson’s in-person testimony for weeks, convinced that the state legal system has failed him.

Reps. Joe Moody, D-El Paso, and Jeff Leach, R-Plano, have accused the attorney general’s office of stonewalling the committee and slow-walking Roberson’s testimony until the panel automatically dissolves next month with the start of the new legislative session.

In the filing, Paxton asked the court to hold a hearing before it decides whether to grant his motion. But he requested that the hearing not be set before Jan. 13, 2025, saying he “will be out of the country.”

The new legislative session starts — and the committee disbands — on Jan. 14.

“The attorney general’s office knows that and is trying to delay until the start of the next session, which is just horrifying and maddening to me,” Leach said at an event with the Tribune on Dec. 6.

Members of the Texas House Committee on Criminal Jurisprudence had planned to hear from Roberson at a hearing on Friday after serving the death row inmate with a second subpoena this week.

In his motion, Paxton argued that the committee’s subpoena was “procedurally deficient and overly burdensome,” making it necessary for a court to protect the Texas Department of Criminal Justice from complying with the subpoena’s demand that the agency transport Roberson to Austin.

Paxton argued that the subpoena was issued “in violation of the House rules, the Constitution and the Open Meetings Act.” He wrote that legislative subpoenas must be approved by two-thirds of a standing committee, and that no one legislator can retain the power to issue a subpoena on behalf of the entire committee.

The nine-member criminal jurisprudence committee had unanimously approved a subpoena to Roberson in October, which forced a stay of his scheduled execution and set off a legal and political fight between the lawmakers and the executive branch.

The committee did not reconvene to approve the second subpoena — making it invalid, Paxton argued.

The attorney general’s office also argued that the subpoena imposed an “undue burden” in requiring TDCJ to transport Roberson to the Capitol, which the motion said “poses significant safety and security risks to the inmate, correctional staff and the public.”

Paxton argued that Roberson’s circumstances posed a uniquely disproportionate challenge for law enforcement, noting that his case has become “highly publicized.”

“To mitigate these risks even slightly, TDCJ would have to devote significantly more human and physical resources to the transportation of this one inmate, at a significantly higher cost than it otherwise would to transport an entire roster of inmates,” the motion reads.

And Paxton accused lawmakers of misrepresenting their rationale for seeking Roberson’s testimony and violating the separation of powers by issuing a subpoena that “exceeds any permissible scope.”

Lawmakers have said they believe the courts are not properly applying the state’s groundbreaking junk science law, which Roberson has tried unsuccessfully to use to overturn his conviction. Members of the committee said they wanted to hear directly from Roberson, who is autistic, about his efforts to seek justice under the law to interrogate its potential deficiencies.

But Paxton called that reasoning “nakedly pretextual,” arguing that the committee’s “public statements leave little doubt that the true purpose of this invited testimony is to relitigate the question of Roberson’s guilt or innocence.”

In a statement, Roberson's attorney, Gretchen Sween, argued that the attorney general's office was “relying on baseless and vague smears and cheap fear-mongering to justify an act seemingly without legal basis.”

When Roberson's execution was delayed in October, she said, TDCJ officials had “made it clear to me personally that it would be no trouble at all to bring Robert to the Capitol. Then the OAG intervened.”

“The real 'fear' at play here seems to be that seeing and hearing from Robert will make it clear to the public that an innocent man sits on death row who is also a gentle soul with a pronounced disability,” Sween said. “Texans deserve better.”

Moody and Leach, at the Tribune’s Dec. 6 event, vowed to continue fighting for Roberson despite opposition from the attorney general’s office — and even through the start of a new legislative session.

“We will not relent in the pursuit of justice for Mr. Roberson,” Leach said. “If they want to thumb their nose in the face of the Legislature that egregiously and blatantly, they can be — and should be — assured that a new committee next session … will issue a new subpoena if we have to.”