Texas executes Robert Fratta after high courts dismiss complaints of expired lethal injections

The seven doses of TDCJ pentobarbital reported recently were originally supposed to have expired either nearly two or more than three years ago, according to prisoner lawyers. The TDCJ has since changed labeling of drug expiration dates to September and November.

Last month, following two other death row inmates due to die next month, Fratta, who was convicted in Harris County, asked the Travis County courts to stop TDCJ from using old drugs during his execution on Tuesday.

After an emergency hearing on Tuesday morning, State District Judge Katherine Mauzy of Austin issued an interim injunction in the afternoon, saying that the pentobarbital prison supply “is probably illegal to possess or use because it has most likely expired.” She noted that the TDCJ did not provide any evidence to refute prisoners’ claims that expired medications could cause “torture, abuse, or unnecessary pain” in violation of state law.

Shortly after the originally scheduled execution time of 6 p.m., the Texas Court of Criminal Appeals overturned Mozi’s decision, saying she had no jurisdiction in the case. About 30 minutes later, the Texas Supreme Court agreed, dismissing Fratta’s final appeal and allowing his execution to continue.

The 65-year-old man was pronounced dead at 7:49 p.m., 24 minutes after the old but still deadly drugs began coursing through his veins. According to the prison report, Farah Fratta’s brother and son were present at the execution. The prisoner did not give a final statement.

Fratta was convicted of hiring men to kill his wife in 1994 during a contentious custody battle over their three children. Numerous witnesses have stated that Fratta made comments about killing his Farah Fratta or hiring others to do so during the divorce and custody disputes.

The prisoner maintained his innocence during his nearly 30 years on death row, claiming that almost all of the evidence against him was based on the testimony of a single witness who testified in exchange for immunity from prosecution.

In court, Harris County Attorney’s Office alleged that Fratta hired Joseph Pristash and Howard Guidry to shoot Farah Fratta in the head in her garage weeks before the couple were due to file for divorce. Two other men are still on death row.

A few months after the murder, when Guidry was arrested for another crime, his neighbor Mary Gipp told the police that he, Robert Fratta, and Pristash, her boyfriend, were also involved in Farah Fratta’s death. Gipp said that Robert Fratta hired her boyfriend and neighbor to kill Farah Fratta in exchange for $1,000 and a jeep.

Pristash and Guidry later confessed to their involvement in the murder and blamed Robert Fratta. Their statements at the trial, however, resulted in Fratta’s first sentence being dropped because the prisoners did not testify, depriving Fratta of the right to testify against witnesses, as the courts had ruled. He was tried again and sentenced to death largely based on Gipp’s testimony in 2009.

In Fratta’s latest appeals, the inmates’ request to ban the use of expired drugs has raised a jurisdictional dilemma between civil and criminal courts. The Texas Attorney General considered the motion to be a criminal motion to stop the execution, which would have disqualified him from being tried in Austin, where there were no murders. But the inmates treated it as a civil case against state laws governing pharmaceuticals and controlled substances.

Last week, the highest criminal court in Texas banned Travis County judges from stopping executions, but prisoner lawyers said they were not seeking to stop them, only to ensure they were carried out with unexpired drugs.

“It is alarming that Texas intends to carry out executions with pentobarbital, which expired several years ago,” Sean Nolan, a lawyer for two men sentenced to death in February, said Monday. “We must hold a hearing to make sure Texas is not breaking the law and putting prisoners at serious risk of pain and suffering during the execution process.”

​In her injunction on Tuesday, Mozi said she is not delaying execution for any individual prisoner, but instead prohibits prison officials from “taking certain actions during executions.” She said that since the agency uses a drugstore-created controlled substance for its executions, it must comply with state drug and pharmaceutical laws.

Mozi emphasized in a footnote that in 2019 the TDCJ argued in another death row case that “challenging the execution protocol is a civil right, not a criminal right.”

The TDCJ appealed the decision to the Court of Criminal Appeals, the state’s highest criminal court, which overturned Mozi’s injunction, allowing Fratta’s execution. Fratta’s lawyers asked the Texas Supreme Court, which handles civil cases, to intervene, but the judges refused to do so.

In legal disputes, Texas has argued that restrictions on pharmaceuticals do not apply to executions because they are not used to treat anyone.

“Executioners carrying out the current death sentence are not medical practitioners administering medication to a patient because they do not provide therapeutic treatment for injuries, diseases, or illnesses,” the Texas Attorney General’s office said in a statement last week.

The state added that similar lawsuits over old execution drugs have failed because prisoners “failed to demonstrate how these speculative concerns demonstrate a proven risk of severe pain.”

Prisoners’ lawyers have argued that extending the expiration date in Texas is against federal standards, which limit pentobarbital’s expiration date to a maximum of 45 days. TDCJ records show that the agency’s last purchase of the drug was in March 2021.

The complaint also alleged that the prison system only tests pentobarbital for sterility, not stability. And he accused the TDCJ of only testing one vial per batch each time it wants to push back expiration dates when compound drugs mixed in a drugstore kept secret from the public can vary from vial to vial.