AUSTIN, Texas (CN) — Texas carried out its first execution of 2023 on Tuesday evening after the state's highest criminal court overrode a trial judge's ruling it could not go forward because the state’s lethal injection drugs are expired.
Over the objections of Fratta's attorney, the Texas Court of Criminal of Appeals in an 8-1 order granted Attorney General Ken Paxton's request to lift the injunction blocking Fratta's execution late Tuesday.
In a first-of-its-kind challenge, death row prisoners Fratta, John Balentine, Wesley Ruiz and Arthur Brown said the Texas Department of Criminal Justice intended to execute them by injecting them with compounded pentobarbital, even though its 100-milliliter and 50-milliliter vials of the barbiturate expired in June 2019 and May 2021.
They argued the TDCJ and its officials were acting ultra vires, beyond the agency's authority, in violation of the Texas Pharmacy Act, Texas Controlled Substances Act, Texas Food, Drug, and Cosmetic Act, and Texas Penal Code.
Travis County District Judge Catherine Mauzy, a Democrat, sided with the inmates Tuesday.
Finding “the pentobarbital in defendants’ possession is probably illegal to possess or administer because it is more likely than not expired,” she ordered the TDCJ to refrain from injecting them with the drug.
But Paxton immediately asked the Texas Court of Criminal Appeals to enforce a holding it issued last week, barring Mauzy from staying the executions of Fratta, Balentine and Ruiz.
Granting the men a temporary injunction, Mauzy ruled they cannot be executed unless TDCJ shows it has received fresh vials of pentobarbital and they have not reached the beyond use date for compounded drugs of 45 days if kept frozen, three days refrigerated and 24 hours stored at room temperature, in compliance with the Texas Pharmacy Act.
The judge cited the “unrebutted evidence” the challengers submitted in the testimony of their expert, Dr. Michaela Almgren, a pharmacology professor at the University of South Carolina.
She outlined how the TDCJ’s methods of certifying the potency of its pentobarbital stockpile does not comply with the United States Pharmacoepia, rigorous standards for compounding drugs published yearly by the United States Pharmacopeial Convention.
Almgren said compounded pentobarbital is prepared by dissolving it in powder form in alcohol. As the substance is exposed to different temperatures and light, she said, it falls out of solution and breaks down into degradants – the raw chemicals used to make it – and those can contain microparticles that are invisible to the naked eye.
“If they have particulate matter it can cause pain, burning, occlusion of blood vessels and that can cause severe pain … They can get a stroke, embolism and those type of things from having particulates in the solutions,” Almgren testified in a three-hour virtual hearing.
One of the inmates’ attorneys, Alex Kursman of the Federal Community Defender Office for the Eastern District of Pennsylvania, displayed TDCJ drug storage logs, obtained through open-records requests, with entries stating “return to supplier” and “return to stock.”
Almgren said it appears from the documents TDCJ sends one or two vials of its stockpile to its supplier for potency testing but has no records of how they are shipped – if they are kept frozen or refrigerated. And she said vials should never be returned after they are tested because they are likely to have been contaminated.
She added TDCJ’s contract lab uses a quick-scan technology to test its pentobarbital, by which it has deemed all its stock viable through fall of 2023, not the required sterility testing that can detect fungus and microorganisms.
But the state’s counsel cited a study that concluded pentobarbital has a shelf life of up to six years.
Leah O’Leary, Texas assistant attorney general, argued to obtain an injunction the inmates had to show the state’s lethal injections create a demonstrated risk of severe pain. She noted Texas has used its current protocol since 2013.
“TDCJ has carried out executions using pentobarbital under the same testing process that it uses now over 70 times. … What the petitioners describe has never happened," she said.
O’Leary also pointed out that Fratta’s 2009 death sentence became final in 2011 after he exhausted his appeals.
In a retrial, a jury found Fratta guilty of capital murder for the plot to kill his wife, Farah Fratta. At the time of the murder, Fratta was a policeman for a suburban Houston town.
“So at any time over the past nine years the petitioners could have raised this claim,” O’Leary stated.
She argued the four state statutes at issue don’t apply because the Texas Code of Criminal Procedure directs TDCJ to carry out executions by lethal injection, and implicitly requires it to do them without a prescription because doctors are bound by the Hippocratic Oath not to prescribe drugs to kill people.
But Kursman, one of the inmates’ attorneys, said Tennessee and other states obtain prescriptions for every lethal injection execution they do.
Judge Mauzy indicated she was leaning towards the inmates at the end of Tuesday's hearing, while acknowledging she was bound by the Texas Court of Criminal Appeals' order not to stay any of their executions.
“How could that ever be established?” Mauzy asked O’Leary when the state attorney asserted the inmates cannot show they will experience any pain beyond what it feels like to have blood drawn when the IVs are placed in their arms.
Mauzy also emphasized she has not heard any evidence from Texas about whether it can get any unexpired pentobarbital.
“The state is certainly entitled to carry out the executions that have been ordered with unexpired drugs,” she said.
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