By Jolie McCullough, The Texas Tribune
“Texas set to execute Wesley Ruiz despite ongoing fight over state’s use of old lethal injection drugs” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
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On Wednesday evening, Texas plans to execute Wesley Ruiz despite the ongoing controversy surrounding the state’s use of drugs long past their original expiration dates to kill prisoners.
Ruiz, 43, was sentenced to death nearly 15 years ago for the 2007 shooting of Dallas police Senior Cpl. Mark Nix following a high-speed car chase. The chase began while police were searching for a murder suspect, according to court documents. Ruiz’s car eventually slid off the side of the road, and Nix rushed over and began smashing the passenger side window with his police baton. Ruiz fatally shot him in the chest through the back passenger window, court filings state.
In an active legal battle, Ruiz and other condemned prisoners have argued the state prison system should not be allowed to continue extending the expiration dates of its execution drugs. They claim the use of old drugs violates the U.S. Constitution’s prohibition of cruel and unusual punishment.
With fewer pharmacies willing to produce execution drugs, the Texas Department of Criminal Justice for years has extended the use-by dates of its existing pentobarbital, the only drug used in Texas executions, after retesting potency levels. Previous legal battles seeking to halt the practice have failed in court.
In the current litigation, Texas’ high courts refused to halt a January execution, overriding a lower state court’s temporary order that prisons use only new execution drugs until the lawsuit goes to trial in March. The Texas Court of Criminal Appeals ruled the lower court could not issue any order that would seemingly cancel an execution.
The prisoners’ attorneys and the district court judge assumed, based on the most recently publicly released records from November and TDCJ’s silence, that the only execution drugs the prison had in stock were years past their original expiration dates.
Minutes after the courts’ final rulings on Jan. 10, Robert Fratta was executed.
Nowhere in repeated court filings or an hourslong hearing did TDCJ attorneys inform courts that the agency recently obtained new drugs, as was discovered by The Texas Tribune last week. Pentobarbital supply logs obtained through a public information request revealed the prison received eight new doses on Jan. 5, five days before Fratta’s execution. A new vial of drugs was used to execute Fratta.
“TDCJ knew it had other chemicals for use in the execution — and actually used those chemicals — but TDCJ withheld that information from Mr. Fratta and the courts, leading everyone, including the public, to believe that they only had chemicals that were found to cause pain,” said Tivon Schardl, a federal defense attorney representing Fratta, in a statement last week.
TDCJ spokesperson Amanda Hernandez said the agency continued fighting the lawsuit after new drugs arrived in part because officials didn’t know if the new doses would be used in upcoming executions.
Hernandez did not explain why the agency and the Texas attorney general’s office failed to disclose the new drugs in court or correct the stated belief that TDCJ had only old vials.
“Basically, we want to be able to continue to preserve the ability to use any of the drugs in our inventory because we believe they are still viable to be used in executions,” Hernandez told the Tribune last week.
Texas has rejected claims that its process of retesting and extending the expiration dates is known to be torturous, as executions carried out using such drugs typically proceed without any indication of pain. The state argued state regulations for pharmaceutical drug use should not apply to executions.
In any case, the shipment of new drugs likely could not have been used to execute Fratta, or be available for Ruiz’s execution Wednesday, if the appeals court hadn’t tossed out the temporary injunction issued by state District Judge Catherine Mauzy.
In her short-lived order, Mauzy required TDCJ to use pentobarbital within the time frames set forth by the storage requirements of the Texas Pharmacy Act. Such conditions set expiration dates for compounded pentobarbital at 45 days, if kept frozen, but only 72 hours if kept refrigerated, or 24 hours if stored at room temperature, according to court briefings.
Past laboratory reports of TDCJ’s pentobarbital testing list the substance’s storage conditions as “room temperature.” Hernandez did not specify how its stock of pentobarbital is currently stored, but she said she understood that the new drugs still would not have complied with Mauzy’s order.
“You’re making an assumption that the new drugs meet the requirements of the Texas Pharmacy Act,” she said. “That is just an assumption.”
Aside from the dormant fight over old drugs in Travis County, Ruiz asked his trial court in Dallas County to halt his execution because of concerns over the lethal drugs. The court denied his appeal Tuesday, and an appeal with the Texas Court of Criminal Appeals was pending Tuesday afternoon.
Ruiz also still had a pending appeal in the U.S. Supreme Court, in which he argued that jurors relied on “overtly racist” and “blatant anti-Hispanic stereotypes” while weighing whether or not he should be sentenced to death.
His lawyers cited recently obtained affidavits from Ruiz’s jurors that use racist language to describe Ruiz and Hispanic men, including the foreman calling him a “thug and punk” and saying he was scared of Hispanic people in the courtroom because he believed they were gang members. He also described feeling threatened while driving once because someone he believed to be Mexican was behind him in a “flashy car.” The foreman said he convinced another juror to opt for the death penalty despite her hesitancy, according to the filing.
Texas courts have so far rejected the appeal based on its late timing.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/02/01/texas-execution-drugs-wesley-ruiz/.
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