Ken Paxton resisting Texas House members’ bid to hear Robert Roberson’s testimony

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A bipartisan group of state lawmakers and Attorney General Ken Paxton remain at odds over whether death row inmate Robert Roberson should be forced to testify before a House committee at the Texas Capitol, a question now in the hands of the Supreme Court of Texas.

Members of the House Criminal Jurisprudence Committee who earlier this month successfully delayed Roberson’s execution — at least temporarily — argue in a Texas Supreme Court brief that they’re facing considerable opposition and stonewalling from the Office of the Attorney General in getting the state to comply with their subpoena for the death row inmate’s testimony about his case.

“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.

Paxton’s office argues that state lawmakers usurped executive power by attempting to forestall the execution with a legislative subpoena in a case that’s already been litigated throughout the justice system.

The Criminal Jurisprudence Committee voted unanimously Oct. 16 to subpoena Roberson so he could offer testimony on his prosecution and efforts to appeal a 2003 conviction for the murder of his two-year-old daughter Nikki. Roberson has maintained his innocence for more than two decades on death row.

The Texas Supreme Court temporarily stalled Roberson’s execution to allow him to testify at the Capitol four days after he was scheduled to die. But Roberson did not appear after Paxton’s office stepped in and said lawmakers could not legally compel Roberson to testify.

According to lawmakers’ retelling, Texas Department of Criminal Justice leaders worked with committee Chair Joe Moody, D-El Paso, and other lawmakers to coordinate logistical details of Roberson’s testimony, including what room it would be held in and how Roberson could securely travel from East Texas to the Capitol. But the Office of the Attorney General objected, writing in an email to Moody that only virtual testimony would be permitted due to “safety concerns.”

On the morning of the scheduled hearing, Moody called the Attorney General’s office to explain that virtual testimony would not work for Roberson because he has autism. Moody discussed alternative options, such as obtaining Roberson’s testimony in prison, a solution committee members brought up during the hearing. Even though Roberson did not appear, committee members took testimony from celebrities who doubt the inmate’s guilt and a juror who said new evidence would have prevented his conviction.

The following day, in a surprising turn of events, the executive branch said they wouldn’t permit any form of a hearing with Roberson. Instead, they asked for Moody and committee member Jeff Leach, R-Plano, to sign a letter admitting “that Roberson was a murderer, that they had overstepped their authority, and that no legislative committee should ever act similarly in the future.”

The committee rejected that offer, leaving the Court to address an unprecedented legal question about whether state lawmakers have the constitutional right to issue a subpoena that conflicts with criminal proceedings.

Gov. Greg Abbott also condemned state lawmakers, arguing Roberson’s case was already litigated through the justice system. Lawmakers maintain that issuing the subpoena was well within their rights, and they blame Paxton for refusing to work with the committee to find a mutually agreeable solution.

Paxton has issued a graphic press release in which he insisted on Roberson’s guilt and condemned the committee for “interfering with the justice system in an unprecedented way.” House leaders responded with a point-by-point rebuttal explaining how evidence that wasn’t considered at trial proves Roberson’s innocence.

Paxton’s office has not yet responded to the House panel’s Texas Supreme Court brief filed Monday. The state’s response is due to the Texas Supreme Court on Nov. 4. Roberson’s execution is halted until the case about the subpoena is resolved.

On Monday, Paxton’s office filed a letter to the court informing them that Leach had texted a Texas Court of Criminal Appeals judge last week that Roberson deserves a new trial, an apparent violation of Texas’ disciplinary rules of professional conduct.

Leach later apologized to the Court and said he thought he was “in the clear” because he is not a party to Roberson’s case.