Subpoena showdown: Will Robert Roberson testify at Texas lawmakers' hearing?

Texas death row inmate Robert Roberson is being called to testify at a state House committee hearing Friday at noon, as ordered by a new subpoena issued this week.

But whether the condemned man will be produced in person is unclear, after the state’s attorney general’s office filed a motion late Thursday allowing the prison to disregard the subpoena pending a hearing to resolve the motion. The office also resisted in October with a similar subpoena for a hearing with state lawmakers.

The new hearing requires the Texas Department of Criminal Justice to transport Roberson from his prison north of Houston to the state Capitol in Austin.

In a statement issued Thursday, the office of Attorney General Ken Paxton said, “In addition to presenting serious security risks, the subpoena is procedurally defective and therefore invalid as it was issued in violation of the House Rules, the Texas Constitution, and other applicable laws.”

Paxton said in October that there were safety concerns with having Roberson brought before lawmakers and cited a lack of a state facility near Austin that could temporarily house him. The state had said he could testify virtually.

In response, the House Committee on Criminal Jurisprudence offered a compromise that its members could meet with Roberson in prison, saying they were uncomfortable with the video option, given his autism and unfamiliarity with the technology. The meeting, however, never materialized.

A Department of Criminal Justice spokesperson said Wednesday that it “doesn’t have a comment at this time” on whether it would abide by this latest subpoena.

The decision by House committee lawmakers to issue a second subpoena comes after the attorney general’s office challenged the initial one. The original subpoena was an unusual legal gambit that set off a flurry of litigation that put Roberson’s execution on hold mere hours before he was to be executed on Oct. 17. He would have been the nation’s first person to be executed for a “shaken baby” death after long maintaining his innocence. His 2-year-old daughter, Nikki, died in 2002.

The House committee members said they still want Roberson to be able to testify in his case as it relates to a 2013 “junk science” law that allows Texas inmates to potentially challenge convictions based on advances in forensic science.

“Robert’s testimony will shed important light on some of the problems with our ‘junk science writ’ process, a legal procedure Texas lawmakers expected to provide reconsideration in cases like this one,” committee chair and state Rep. Joe Moody, a Democrat, and committee member and state Rep. Jeff Leach, a Republican, said in a statement. “His perspective will be especially valuable as a person on the autism spectrum whose neurodivergence profoundly influenced both his case and his access to justice on appeal.”

Last month, the Texas Supreme Court sided with state officials that lawmakers could not use their subpoena power to effectively halt an execution, but said the committee members could still compel Roberson to testify.

The attorney general’s office has not set a new execution date.

Meanwhile, the lawmakers and Paxton have sparred publicly over Roberson’s case, with each accusing the other of “misrepresenting” details that led to his conviction in his daughter’s death and releasing their own reports in recent weeks rebutting each other’s claims.

Doctors and law enforcement had quickly concluded Nikki was killed as a result of a violent shaking episode, but Roberson’s defense says new understanding of so-called shaken baby syndrome shows that other medical conditions can be factors in a child’s death, as they believe it was in Nikki’s.