A Texas judge on Friday refused to block Texas' switch to a new lethal injection drug, denying a condemned man's efforts to delay his execution, which is scheduled for next week.
Immediately after the Travis County District Court Judge Stephen Yelenosky handed down his ruling, attorneys for inmate Cleve Foster said they would appeal, likely on Monday.
Foster, 47, is scheduled to be executed April 5 for the slaying of a Sudanese woman in Fort Worth in 2002. He would be the first Texas inmate to have pentobarbital used as part of the lethal injection. Pentobarbital is used to euthanize animals.
A nationwide shortage of the sedative sodium thiopental prompted the Texas Department of Criminal Justice to announce last month it was switching drugs.
Foster's attorneys argued that the change violated the Texas Administrative Procedures Act because it requires notice and an opportunity for public comment.
But Yelenosky agreed with Texas Attorney General Gregg Abbott's office that state law specifically provides a broad exemption for the prison agency on matters concerning prison inmates, leaving him no jurisdiction to rule in Foster's favor.
Foster's attorneys, Maurie Levin and Bryce Benjet, said they will take their case to the Austin-based 3rd Court of Appeals.
The case "goes to the heart of open government," said Levin, a University of Texas law professor who represents death row inmate Humberto Leal, who is scheduled for execution July 7.
"This is not about whether death row inmates get to decide what drugs they are executed by," said Benjet. "We need these things to be fully vetted."
Foster and Leal sued this week to block the new procedure and require executions to be carried out under the previous protocol, which would mandate the now unavailable sodium thiopental as one of the drugs.
Oklahoma has changed its execution procedure to include pentobarbital as part of a similar three-drug mixture. Ohio uses pentobarbital exclusively to carry out its capital punishment. The procedure in each of those states has been backed by the courts.
Foster was one of two men linked to the slayings of two women. He and his former roommate, Sheldon Ward, were sent to death row for the murder of Nyanuer Pal, 30, who they met in a bar. Foster has denied any part in her abduction and shooting death and blamed her death on Ward, who died of cancer in prison last year. They were charged, but never tried, for the shooting death of Rachel Urnosky, 22, at her Fort Worth apartment in December 2001.
Leal, 38, from Monterrey, Mexico, was condemned for the 1994 abduction, rape and beating death of a 16-year-old San Antonio girl, Adria Sauceda.