The two inmates sued the state on Tuesday, alleging that the department violated state transparency laws by making in secret the decision to use a new execution drug. Foster is scheduled for execution on Tuesday, and Leal, a Mexican citizen, is scheduled to die July 7. The inmates asked the court to stop Texas from using pentobarbital because they say the state did not abide by the Administrative Procedure Act, which they say requires public input in the process.
But Yelenosky said the Act does not apply to rules the Texas Department of Criminal Justice makes for its inmates. "This court does not have jurisdiction," Yelenosky said.
The Texas Department of Criminal Justice announced on March 16 that it would use pentobarbital in its three-drug cocktail to carry out lethal injections. Texas and other states with the death penalty were forced to find a substitute for the anesthetic sodium thiopental when its only American producer, Hospira Inc. of Lake Forest, Ill., announced in January that it would stop selling the drug.
Documents made public in the lawsuit show that Rick Thaler, director of the Correctional Institutions Division at the department, did not consult doctors, pharmacists or any medical professionals before he made the decision to switch drugs. Thaler decided to use pentobarbital after reading news accounts of what other states, primarily Oklahoma, had done, and reviewing a report he found online by anesthesiologist Dr. Mark Dershwitz.
Eugene Clayborn, an attorney representing TDCJ, told the court that the agency is exempt from the public rulemaking laws when it comes to inmates. "We think the Legislature ... decided not to give inmates, particularly those on death row, the opportunity to decide what type of lethal injection substance they’re willing to take," Clayborn said. "That could lead to absurd results as well. They could say we don’t want to take any."
Maurie Levin, an attorney for the inmates, said she was angered by Yelenosky's decision. The case, she said, is not only about the type of chemicals Texas uses for executions. "It goes to the heart of open government," she said.