Key Points

  • The Supreme Court of Texas denied a mandamus petition and stay motion filed by death-row inmates John Rubio and Reinaldo Dennes, who challenged the state's use of allegedly expired pentobarbital.
  • Justice Evan A. Young, joined by Justices Lehrmann, Busby and Hawkins, concurred and wrote that he has serious doubts about the Fifteenth Court of Appeals' holding that method-of-execution challenges are criminal matters outside civil jurisdiction.
  • The concurrence cited U.S. Supreme Court decisions allowing method-of-execution claims under Section 1983 and said only the Supreme Court of Texas may draw the line between civil and criminal matters in Texas.
  • The concurring justices declined to resolve the jurisdictional question, citing the late filing, the inmates' failure to show entitlement to a stay, and the scheduling of one execution for the next day and another a week later.

The Supreme Court of Texas on Nov. 11 turned away two death-row inmates' last-minute bid to bar the state from executing them with pentobarbital they allege is expired. Four of the court's justices nonetheless wrote that they doubt a lower court's ruling that such challenges are criminal matters, not civil ones.

Justice Evan A. Young, joined by Justices Lehrmann, Busby and Hawkins, concurred in the court's denial of the inmates' petition for a writ of mandamus and of their motion for a stay. The four justices agreed that the court should not intervene with one execution scheduled for the next day and another a week after that.

The concurrence questions a Nov. 9 ruling by the Fifteenth Court of Appeals that dismissed the inmates' appeal for want of jurisdiction, but it declined to resolve where Texas suits over how a death sentence is carried out belong.

"I have serious doubts about the Fifteenth Court's jurisdictional characterization of the claims," Young wrote. "Perhaps this appeal is beyond its narrow statutory jurisdiction, but maybe not; and it is quite unlikely to fall outside this Court's jurisdiction."

The relators, John Rubio and Reinaldo Dennes, are both under sentence of death. They sued the Texas Department of Criminal Justice and other defendants seeking a temporary injunction and declaratory relief that would bar the use of pentobarbital that is expired or beyond its use date. They alleged that using the drug would violate the Texas and U.S. Constitutions and Texas statutes.

The trial court dismissed the suit for want of jurisdiction, and the inmates appealed. The Fifteenth Court of Appeals held that "[t]he timing, method, and procedures governing carrying out a sentence of death, as well as constitutional challenges to them, are clearly matters arising out of or related to a criminal case, not a civil case." The appeals court therefore "dismiss[ed] this appeal for want of jurisdiction so that appellants may file in a proper court."

Young's concurrence questioned that premise. "At least some claims challenging aspects of how an execution will be carried out strike me as alleging violations of an asserted civil right," he wrote, describing them as "claims that would be collateral to and independent of the criminal-law conviction and sentence itself."

He compared such suits to challenges to prison conditions, which he wrote are generally civil claims. He pointed to Holt v. Hobbs, a 2015 U.S. Supreme Court case in which an inmate sought an injunction under a federal religious-liberty statute against a prison policy that barred beards. "Yes, such a plaintiff is serving a prison sentence—but that hardly makes every claim by that plaintiff 'criminal litigation,'" Young wrote.

The concurrence drew a line between the inmates' convictions and the manner of their executions. "Whether relators are guilty and whether capital punishment is appropriate are, of course, matters wholly entrusted to the criminal-law system, which has spoken," Young wrote. A court exercising civil jurisdiction may not disturb those determinations, he added, but that does not mean claims like the inmates' fall outside the civil law.

Young relied on U.S. Supreme Court precedent holding that inmates may generally bring method-of-execution claims under 42 U.S.C. Section 1983 rather than only through habeas corpus. He described habeas as "a technically civil but functionally criminal remedy" to which a prisoner is limited when seeking relief that would disturb a conviction or sentence. He cited Nelson v. Campbell, decided in 2004, and Nance v. Ward, a 2022 decision.

In Nance, Young wrote, the high court held that Section 1983 was available even if the challenged method was the only one state law authorized, which is when "a seemingly 'civil' remedy could amount to a de facto bar to a criminal execution." He noted Ramirez v. Collier, a 2022 Section 1983 case addressing the extent to which a death-row inmate had a federally protected right to the presence of a faith leader who could physically touch the inmate during the execution.

Young cited the Texas high court's 2024 decision in In re Texas House of Representatives for the proposition that "it is for this Court alone to determine the boundary between civil and criminal matters in Texas, which itself presents an inherently and purely civil question."

"But we need not resolve the question today, and I remain open to all views," Young wrote. Whatever the answer, he wrote, "it would be imprudent for us to involve ourselves in this matter any more than in previous efforts to invoke civil jurisdiction to address similar late-filed contentions."

The concurrence noted that the case had already made one trip to the Texas Court of Criminal Appeals, which Young wrote is "fully capable of addressing civil questions that arise in the context of criminal proceedings." He wrote that the inmates were not deprived of a chance to press their claims merely because they lacked an additional forum "late in the day."

Young also wrote that the inmates had not shown they were entitled to a stay, which the court would have needed in order to consider the merits of a mandamus petition filed only the day before. Citing the court's 2024 decision in In re Walker, he wrote that mandamus relief "is largely controlled by equitable principles," including that it be sought with maximum expedition rather than delay.

A stay in this setting, he wrote, "should be resisted if not clearly supported by the traditional stay factors because of the high risk of interfering with the criminal-justice process." He closed by writing, "I agree with this Court's decision not to step in at the last minute."

Rubio was represented by McKenzie Edwards of the Office of the Federal Public Defender for the Northern District of Texas, and Dennes by Kathryn Wood Hutchinson of the Federal Public Defender's office for the Western District of Texas. Tomee M. Heining of the Office of the Attorney General of Texas was listed as counsel for the Texas Department of Criminal Justice and the other defendants.

The Supreme Court of Texas denied both the mandamus petition and the stay motion in the case, No. 26-1300. The concurrence left open the question of whether method-of-execution suits are civil.