The Texas Criminal Court of Appeals (TCCA) last week prevented a civil court decision over a jurisdiction issue regarding the Texas Department of Criminal Justice using expired Pentobarbital when executing death row inmates. The results of such expiration can degrade the drug and lead to a host of painful symptoms. The civil court sided with the inmates, stating that the Pentobarbital the state uses to euthanize its death row inmates is most likely expired and violates several Texas drug laws. The ruling was not over a stay of execution, only that the state refrain from using expired drugs when executing inmates on death row.

After the decision was handed down, Attorney General Ken Paxton filed an appeal to the Texas Court of Criminal Appeals, saying that the civil judge could not preside over the case, and only the Texas Court of Criminal Appeals could do that. The TCCA sided with the Attorney General and prevented the civil court judge from carrying out her decision. The Texas Court of Criminal Appeals said that the civil court did not have jurisdiction over the case since it was a civil court and not a criminal one. The inmates’ attorney, Shawn Nolan, appealed to the Texas Supreme Court which denied hearing the case.

Nolan’s case argued that the Pentobarbital in the TDCJ possession is around two and three years beyond the use date. “The 50ml vials of pentobarbital in TDCJ’s possession expired over twenty months ago and the 100ml vials of pentobarbital expired over forty-three months ago.”

The lawsuit says that the TDCJ keeps the Pentobarbital at room temperature. The beyond-use date (BUD) for Pentobarbital, according to the United States Pharmacopeia (USP):

• 24 hours, if stored at room temperature between 20° and 25°C;
• 72 hours, if kept refrigerated at a temperature range between 2° and 8°C, or
• 45 days, if kept in a solid, frozen state at a temperature range -25° and -10°C.

According to the storage logs, the last bought batch was on March 2021 for 50ml vials and April 2019 for 100ml vials. All that to say is according to the USP, these drugs are quite beyond the expiration date.

If the drugs are expired, this could have dire consequences when euthanizing death row inmates. The potency is not as strong and there’s a host of painful symptoms that can result from using expired drugs.

Nolan’s case argued that the Texas Department of Criminal Justice violates several United States and Texas drug laws. It is a constitutional right in the Eighth Amendment not to have a cruel or unusual punishment. Additionally, the Texas Code for Criminal Procedure article 43.24 says “No torture, or ill-treatment, or unnecessary pain, shall be inflicted upon a prisoner to be executed under the sentence of the law.”

Nolan declared that the TDCJ is in violation of several Texas drug laws as well. Nolan pointed to The Texas Pharmacy Act, the Texas Controlled Substances Act, The Texas Food, Drug, and Cosmetics Act, and the Texas Penal Code. Several of the violations Nolan listed were:

• Not complying with USP standards;
• Having more Pentobarbital than needed;
• Use of expired drugs;
• TDCJ obtains this drug illegally and in violation of Texas drug laws;
• Prescriptions must give all information of the time, person, place, and quantity, of its prescription;
• Do not have a valid prescription;

The TDCJ of course denied these claims and said that through testing they have determined that their stock of Pentobarbital is not expired and has an extended beyond-use date (BUD). The state of Texas does not disclose where it purchases Pentobarbital from. They have kept it a secret. Texas procures these drugs from a compounded pharmacy, and its name is unknown to the public. There has even been a lawsuit against the state trying to pry that information from their hands.  The Texas Supreme Court has upheld the state’s decision to keep its distributor a secret in 2019. Texas maintains that it allows a level of safety for these pharmaceutical companies to have privacy against threats. 

When testing if their stock of Pentobarbital is still good, the TDCJ used potency testing on one vial to extend the beyond-use-date (BUD). They came to the conclusion that the Pentobarbital is still fresh and they were able to extend the BUD. However, the expert witness for the inmates’ case says otherwise. 

Michaela Almgren, Pharm.D., M.S., is a Clinical Associate Professor in the Department of Clinical Pharmacy and Outcomes Sciences at the University of South Carolina College of Pharmacy. She stated that the test the TDCJ did “is a quantitative test commonly used to determine the amount of the drug in a sample which is freshly prepared/compounded when there are no concerns about potential degradation. However, this method is not intended to determine stability of pentobarbital, and it may not detect if the drug has deteriorated over time as it is not sufficiently sensitive to detect degradation.”

Almgren stated, based on her review of the case and the records, that the TDCJ’s stock of Pentobarbital is very expired and has been for 2 years (for 50ml vials) and 3 years (for 100ml vials). In her written statement, she adds that the beyond-the-use date was extended unlawfully and unscientific. “There is vast evidence in the literature pointing to the fact that expired medications should not be used in human patients due to unpredictability of the action, and potential harm, including nausea, vomiting, acute renal failure, and other severe side effects.” 

Last week, the first of the three plaintiffs was executed in Huntsville. Robert Fratta was convicted with capital punishment after committing murder-for-hire against his estranged wife. The other two plaintiffs are Wesley Ruiz (set to be executed Feb. 1st) and John Balentine (Feb. 8th).