Texas Executes Man Using Expired Drugs

A last-minute injunction gets tossed, allowing the state to give Robert Fratta a lethal dose of pentobarbital.

Texas used lethal injection to execute 65-year-old Robert Fratta on Tuesday night despite an ongoing legal fight over the state's use of allegedly expired drugs.

Fratta, a former Houston cop convicted of hiring two people to kill his wife in 1994 amid a custody battle, was pronounced dead Tuesday night just before 8 p.m. after a lethal injection of pentobarbital.

For a short time on Tuesday afternoon, Fratta's fate hung in the balance because of an injunction ordered by Judge Catherine A. Mauzy of the 345th District Court of Travis County in response to a lawsuit by Fratta and three other death row inmates. These prisoners have been fighting what they claim is the use of expired pentobarbital for executions. According to their lawsuit, the pentobarbital stocks Texas is using expired years ago, and they claim the drugs will "act unpredictably, obstruct IV lines during the execution, and cause unnecessary pain." The plaintiffs also argued that using these expired drugs violates several Texas laws. They weren't asking the court to spare their lives, they insisted, but that the court forbid Texas from using expired drugs.

The state of Texas objected to this characterization, claiming it retests the doses to make sure they're still potent and then relabels the pentobarbital with a new expiration date. The state also argues that the restrictions on the use of pharmaceutical drugs don't apply to executions because the drugs aren't being used for treatment but to kill. Attorney General Ken Paxton turned to the Texas Court of Criminal Appeals to attempt to stop civil judges of district courts (where this lawsuit was being heard) from attempting to interfere with any upcoming executions, claiming that this is all under the jurisdiction of criminal courts.

Last week, the Texas Court of Criminal Appeals agreed and put out an order telling judges of the 345th District Court to "refrain from issuing any order purporting to stay the January and February executions" of these inmates.

On Tuesday afternoon, however, Mauzy attempted to thread the needle with her injunction. She declined to issue a stay of execution (noting that she lacks the power to do so) and instead ruled that Texas cannot execute these defendants with the expired pentobarbital. The state can still execute the men with pentobarbital, just not the expired pentobarbital allegedly in its possession. Mauzy approached the conflict as a drug safety question, one more normally decided by civil courts, not criminal courts.

While this may seem to be a simple order, it would have stopped all pending executions. The simple reason is that over the past two decades, most drug companies have stopped making their products available to prisons for use in executions. States that insist on using drugs to execute prisoners struggle to maintain unexpired supplies of them.

In response to the dwindling supply of execution drugs, Texas passed a law in 2015 to keep providers of their lethal injection drugs secret in order to prevent death penalty opponents from pressuring the drug companies and compound pharmacies that supply Texas. In November, The Texas Tribune calculated that the state had enough remaining doses for seven executions. As of last April, the state had 199 inmates on death row, one less now that Fratta has been executed.

Mauzy's attempt at an injunction was promptly overturned Tuesday afternoon when the Texas Court of Criminal Appeals overruled her, again on the grounds that she lacked jurisdiction on how executions are handled. The Texas State Supreme Court then quickly rejected an appeal, so Texas moved forward with Fratta's execution.

Texas is clinging to expired drugs because it doesn't want to stop executing people. The ethics of the death penalty are already troubling—the state taking lives in an imperfect and heavily politicized justice system. By using expired drugs in violation of state and federal laws and consumer safety regulations, Texas and other lethal injection states are undermining the justice system.