State Admits Execution Drug Is Expired, Doesn’t Really Care

District Judge Catherine Mauzy tried to keep Texas from killing Robert Fratta. At a Jan. 10 hearing on the afternoon of Fratta's scheduled execution, Mauzy agreed with attorney Shawn Nolan that the pentobarbital used by the Texas Department of Criminal Justice to execute death row inmates was likely expired, meaning that the state's mere possession of the drug, much less its use, is illegal. She also ruled that TDCJ hadn't denied Nolan's contention that the drug could cause "torture, ill treatment, or unnecessary pain." The judge issued a temporary injunction forbidding officials from using their expired pentobarbital on any inmate.

Days earlier, the attorney general's office argued to the Texas Court of Criminal Appeals that they need not follow the laws that ensure safe use of pentobarbital in Fratta's case because executioners do not provide "therapeutic treatment of injury, illness, or disease." But after Mauzy's injunction, the judges of the appeals court didn't bother to opine on whether using expired drugs to kill people is legal; they simply announced that Mauzy had no jurisdiction in the matter. The legal arguments delayed Fratta's execution by an hour.

Now, the state is planning to use the expired drugs again to execute Wesley Ruiz on Feb. 1. Nolan has appealed to Ruiz's trial court to ask that Texas observe the rule of law in its use of pentobarbital. "If the State is to be permitted to take the life of a person, the least we should expect is that it follow the requirements of the law," Nolan writes in a motion to the court. "By its own admission it has not done so here."

Advocates for Ruiz say that he is deeply remorseful for his 2007 killing of Dallas police Officer Mark Nix and that he has worked to better himself during 14 years on death row. They argue that the jurors at his trial did not consider the sexual molestation, homelessness, and brain damage he suffered as a child, evidence that could have resulted in a life sentence rather than death. According to Nolan, several of the jurors have said that, given the chance, they would reevaluate the case. The foreman of the jury supports commuting Ruiz's sentence to life without parole.