The Texas Supreme Court remanded Robert Roberson’s case to a lower court. Here’s what that means

Robert Roberson III knew for months that his death was planned for Thursday afternoon. A lethal dose of pentobarbital would enter his veins sometime after 6 p.m., based on an order from an East Texas judge this summer.

Since then, the date and time had remained unchanged despite a series of appeals in lower courts and the highest court in the land, the state’s parole board and Gov. Greg Abbott. That is, until a Travis County judge granted a novel request from a bipartisan group of Texas House members challenging the state’s plans.

Lawmakers subpoenaed Roberson, an East Texas man convicted of killing his 2-year-old daughter more than two decades ago, on Wednesday night to appear in Austin and testify on Monday – four days after the state was scheduled to kill him.

The judge signed the order at 5:30 p.m., a half hour before the state planned to execute the 57-year-old by lethal injection in Huntsville.

Related:A timeline of the effort to save Robert Roberson from execution

The Texas Attorney General’s Office immediately appealed to the Court of Criminal Appeals, which overruled the lower court’s order and reinstated enforcement. But an appeal by lawmakers to the Supreme Court of Texas on Thursday gave the final word: the execution was stayed for now.

Roberson is scheduled to testify in person Monday about the state’s “crappy” science law, which lawmakers say was improperly applied in his case. Gretchen Sween, Roberson’s attorney, said she knew nothing about the lawmaker’s plan until she was contacted to take the subpoena on his behalf.

“I’m so grateful that there is a Monday,” Sween said in an interview Friday.

Roberson’s lawyers and lawmakers, including half of the Republican-controlled House of Representatives, argue his case is based on shaken baby syndrome, a medical finding that abuse has resulted in serious or fatal head injuries. The diagnosis has come under extensive scrutiny in the years since the conviction.

Opponents, including the Anderson County district attorney and the Texas attorney general’s office, contend that shaken baby syndrome was not central to the conviction. Since then, several courts have declined to intervene in subsequent appeals.

After Roberson testifies Monday, attorneys will debate his fate again. It was not clear on Friday what the upcoming phase of legal sparring would entail.

The Texas Supreme Court’s order says, in part, that it does not preclude another trial in the Anderson County District Court, which convicted Roberson in 2003.

Executing a person requires an execution order signed by a judge. Such an order comes from the sentencing court. According to the Texas Code of Criminal Procedure, the date of execution cannot be earlier than the 91st day after the date on which the sentencing court issues the order setting the date.

It is unclear when an enforcement order can be applied for. The legal 91-day period between setting an execution date and the execution itself means that Roberson’s execution would not take place until early 2025 at the earliest.

Anderson County District Attorney Allyson Mitchell, whose office tried the case, said evidence in the 2003 trial showed Roberson abused his daughter Nikki.

Speaking before the House committee that later subpoenaed Roberson, Mitchell said she was certain Nikki’s death was a homicide, citing evidence from the original trial and subsequent appeals and hearings.

While answering questions from lawmakers, Mitchell said at times she needed to review the file — something Sween recalled Friday.

“It’s clear that she doesn’t know at least some things about this case,” Sween said of Mitchell, who she “hopes doesn’t rush” to seek another execution warrant.

Mitchell did not respond to requests for additional information Friday.

In November 2017, Mitchell told the Palestine Herald Press She believed the death penalty might be appropriate depending on the case.

“The death penalty is part of Texas law,” Mitchell told the newspaper. “Regardless of a prosecutor’s personal beliefs, he or she is sworn to uphold the law. That’s what I plan to do.”

Earlier this month, Mitchell’s office, with help from the attorney general’s office, secured the conviction of a man who killed six people in 2015, including a 6-year-old and a 76-year-old.

The scope of further appeals Roberson’s attorney could pursue is also unclear.

Roberson’s execution has already been delayed once. In 2016, the Court of Appeals – the state’s highest criminal court – halted the execution so his lawyers could present new medical evidence. The court did not intervene in subsequent appeals.

Shortly after the Travis County judge issued her order Thursday, the U.S. Supreme Court again rejected a plea from Roberson’s lawyers to intervene in a separate case.

A day earlier, the Texas attorney general’s office filed a brief with the nation’s highest court arguing that the execution should proceed, citing evidence from the 2003 trial.

The Texas Attorney General’s Office did not respond to an emailed list of questions Friday.

Roberson’s lawyers and lawmakers had asked Abbott to delay the execution for 30 days, which he has the authority to do.

Abbott, a death penalty supporter, has not publicly commented on the case. According to the Corpus Christi Caller-Times, he was in Corpus Christi for an event Thursday evening but did not take questions from local reporters.

Abbott spokespeople did not respond to an emailed list of questions Friday.

The only time Abbott stopped an execution was in 2018, when he saved the life of Thomas Whitaker, who was set to die for the 2003 murders of his mother and brother in Fort Bend County. In this case, the Texas Board of Pardons and Paroles — which rejected Roberson’s request — unanimously recommended granting clemency.

Among those calling for a pause in Roberson’s scheduled execution was U.S. Supreme Court Justice Sonia Sotomayor. The judge’s comments, who have previously criticized the state’s use of the death penalty, came after the court declined to intervene again on Thursday afternoon.

“Under these circumstances, a stay that allows for consideration of Roberson’s credible claims of actual innocence is imperative; Yet this court is unable to grant it,” Sotomayor wrote. “That means there remains only one path to relief: a stay of executive power.”

Earlier in the day, state Rep. Brian Harrison, R-Midlothian, said lawmakers were confident Abbott would pause the execution.

“I spent a lot of time in the governor’s office last night,” Harrison told radio host Mark Davis. “What I would say is that very fruitful and productive discussions are taking place.”

The break never came.