Texas execution drugs expire amid lawsuit

The seized execution drugs that sparked a legal battle earlier this year have now expired — but Texas is still moving forward with a federal lawsuit to get them back and shore up future supplies.

The dispute will not halt a scheduled July 27 execution of a Bexar County man, because the state still has enough drugs on hand to carry out the seven executions currently scheduled.

The courtroom wrangling kicked off earlier this year when the Texas Department of Criminal Justice sued the U.S. Food and Drug Administration demanding the return of 1,000 vials of the lethal injection drug sodium thiopental confiscated two years ago at Bush Intercontinental Airport.

Although state officials called it an “unjustified seizure,” the FDA said the drugs were improperly labeled and not approved for injection in humans.

“The detained drugs appear to be unapproved new drugs and misbranded drugs,” the agency said in April. “As such, the shipments must be exported or destroyed.”

Texas upped the ante with new federal court filings in Galveston that month, but the drugs expired the following month, officials say.

“We do have documents that indicate that the drugs expired in

May,” TDCJ spokesman Jason Clark said Monday. “But the lawsuit is still moving ahead at this point.”

That’s in part because the legal claim isn’t just about one seized shipment. The amended federal court filings seek to lift the FDA’s ban on importation of sodium thiopental when it’s for law enforcement use.

Sodium thiopental has been used in more than 400 Texas executions, but it’s fallen out of favor in recent years as manufacturers have become wary about their products being used in executions.

The powerful drug was part of the execution process until 2011, when dwindling supplies forced the state to switch from one three-drug cocktail to another. A year later the state switched again, this time to a single dose of a fast-acting barbiturate called pentobarbital.

But when pentobarbital supplies started drying up, Texas started looking for other sources.

“The future supply of lethal injection drugs is unknown, so we continue to explore all options,” Clark said. “You just can’t speculate on the future availability of lethal injection drugs.”

The state’s effort to bolster its reserves led authorities to the India-based supplier Harris Pharma.

At this point, taxpayers have already paid for the drugs, dishing out about $27,000 to the foreign company before the vials were shipped, according to state records.

After the FDA issued its final refusal to let the vials in back in April, the agency gave TDCJ 90 days to export or destroy the drugs. Clark said Monday that the seized shipment is still in the FDA’s hands, as far as the state is aware.

Whether or not Texas wins its bid to import the pricey drug in the future, executions will continue.

Among the seven executions on the calendar is a recently added October date for Anthony Allen Shore, an admitted serial rapist and killer who terrorized Harris County in the 1980s and 1990s.

But Clark said he was not immediately able to offer details on how much longer the current supplies would last.

In the meantime, the state has not put in more orders with the overseas drug seller.

“The agency has not purchased any further drugs from the supplier at this time,” Clark said. “We will re-evaluate the situation at the conclusion of the lawsuit.”

“The future supply of lethal injection drugs is unknown, so we continue to explore all options.” Jason Clark, TDCJ spokesman