PER CURIAM
Do Not Publish
ON MOTION FOR LEAVE TO FILE A WRIT OF PROHIBITION IN RELATION TO DALLAS COUNTY CASE OF EX PARTE WESLEY RUIZ, POTTER COUNTY CASE OF EX PARTE JOHN LEZELL BALENTINE, and HARRIS COUNTY CASE OF EX PARTE ROBERT ALAN FRATTA TRAVIS COUNTY
OPINION
PER CURIAM
We have before us a motion for leave to file an application for writ of prohibition filed by the Honorable Ken Paxton, Attorney General of the State of Texas. Therein, he asks this Court to order the Honorable Jan Soifer, Judge of the 345th District Court of Travis County to refrain "from enjoining, staying, or otherwise interfering with [Wesley] Ruiz's and [John Lezell] Balentine's [and Robert Alan Fratta's] execution[s] in any way."
Ruiz, Balentine, and Fratta were all convicted of capital murder and sentenced to death in their respective counties. This Court affirmed each of the separate convictions and sentences on direct appeal and issued mandate. Plus, each of the three inmates have filed Texas Code of Criminal Procedure Article 11.071 initial writs of habeas corpus, as well as at least two subsequent writs, in their respective convicting courts over the years. All of the writs were ultimately denied or dismissed by this Court.
Ruiz and Balentine have now filed what purports to be a civil suit in a Travis County District Court seeking injunctive or declaratory relief regarding the drugs to be used in their respective executions. Fratta subsequently intervened (or attempted to intervene) in the suit. Relator (Paxton) asked this Court to stay the proceedings below and grant prohibition relief.
Initially, we stayed the proceedings below pending resolution of this prohibition and we invited the named Respondent, the Honorable Jan Soifer, to respond to the prohibition filed. Meanwhile, we discovered that the case had been transferred pursuant to Chapter 2.6 of the Travis County Local Rules to the 419th Judicial District Court, the Honorable Catherine A. Mauzy, presiding. Judge Mauzy acknowledged receipt of the order we issued in the case requesting a response, and she sent a response.
Leave to file the application is now granted and the Respondent, the Honorable Catherine A. Mauzy, is ordered to refrain from issuing any order purporting to stay the January and February executions of Harris County death row inmate Robert Alan Fratta, Dallas County death row inmate Wesley Ruiz, or Potter County death row inmate John Lezell Balentine.
Newell, J., filed a dissenting opinion in which Walker, J., joined.
Recently, in Nance v. Ward, the United States Supreme Court recognized that a death-row inmate can bring a civil §1983 action for injunctive relief to challenge the method of his or her execution. We have previously held that a challenge to the lethal injection protocol is not cognizable in an application for a writ of habeas corpus. And we've held, at least in the context of a civil suit seeking a clemency hearing, that a civil injunction in a civil case that has the effect of staying an execution is a criminal law matter subject to our jurisdiction.
Nance v. Ward, 142 S.Ct. 2214, 2219 (June 23, 2022).
Ex parte Alba, 256 S.W.3d 682, 683-84 (Tex. Crim. App. 2008); see also Ex parte Chi, 256 S.W.3d 702, 702-03 (Tex. Crim. App. 2008).
State ex rel. Holmes v. Honorable Ct. of Appeals for Third Dist., 885 S.W.2d 389, 394 (Tex. Crim. App. 1994).
As Judge Price pointed out in his dissenting opinion in Chi, this creates a Catch-22 in which death-row inmates have a civil remedy to pursue claims regarding the method of execution but may not stop the execution to raise them. Further, this case is slightly different than the factual scenario presented in State ex. rel. Holmes v. Hon. Court of Appeals for the Third Dist., in which we held that a civil suit seeking a clemency hearing could not enjoin a criminal execution. In Holmes, the suit was seeking to avoid the execution altogether through clemency proceedings. In this case, at least arguably, the underlying suit seeks to effectuate a proper execution according to state law.
Chi, 256 S.W.3d at 714 n.43 (Price, J., dissenting) ("Because this Court refuses to exercise habeas corpus jurisdiction, and because the civil courts cannot enjoin executions even if they can entertain challenges to the lethal-injection protocol, dozens, perhaps even scores, of death-row inmates may eventually be executed before the matter could be resolved on the civil side of the docket.").
The real parties in interest purport to use the Texas Pharmacy Act; the Texas Controlled Substances Act; the Texas Food, Drug, and Cosmetic Act; and Texas Penal Code § 38.11 to apply for an injunction in these cases.
Perhaps this argument by the real-parties-in-interest is too clever by half and instituted for purely dilatory purposes. It certainly appears disingenuous that a death row inmate really desires a proper execution rather than delay through perpetual litigation. Nevertheless, it does point to a conundrum that I believe should be addressed in light of Nance. Consequently, I would file and set this matter for submission. Because the Court does not, I respectfully dissent.