By Mike Ward

Austin American-Statesman

AUSTIN, Texas — A new lawsuit claims the state with the busiest execution chamber is poised to begin experimenting with an array of untested death drugs, after running out of its existing supply.

In a lawsuit filed Tuesday in Houston federal court, four condemned Texas killers — including Michael Yowell, who is scheduled to be executed Oct. 9 — allege Texas has used a prison hospital that closed 30 years as a subterfuge address to obtain some execution drugs.

Seeking to block upcoming executions until a variety of issues about the drugs can be litigated, the lawsuit also wants Texas to fully disclose in advance what drugs it plans to use in future executions and where they come from as well as to ensure they won’t cause pain and suffering.

Prison officials said late Tuesday they had not seen the lawsuit and had no immediate comment.

“We have not changed our execution protocol and have no immediate plans to do so,” said Jason Clark, a spokesman for the Texas Department of Criminal Justice that carries out executions.

The lawsuit alleges that Texas officials are likely to wait until the last minute to announce a new drug — too late for the condemned man to file a court challenge.

“The secretive nature of TDCJ’s actions only heighten the unacceptable nature of what they are attempting to do: experiment with ways to execute human beings,” said Maurie Levin, one of the convicts’ attorneys.

Noting that Texas has run out of manufactured pentobarbital, the drug it has used for executions since July 2012, the suit claims Texas has purchased a supply of the powerful anesthetic propofol, the sedative midazolam and the painkiller hydromorphone — and even tried unsuccessfully to purchase a privately manufactured form of pentobarbital that uses uninspected ingredients.

In addition, the suit claims that in purchasing midazolam, hydromorphone and the compounded pentobarbital, that the Texas Department of Justice improperly used a delivery address of a Huntsville prison hospital that was closed in 1983.

“The prescription for the pentobarbital was written, simply, for James Jones — who is in fact the warden of the Huntsville Unit where executions take place,” the lawsuit states.

Propofol, a common anesthetic, has never been used by any state for an execution, and Missouri — the only state to propose using it for executions — is now embroiled in litigation on the issue.

The Texas lawsuit alleges that the use of propofol “runs a grave risk of causing excruciating pain upon injection,” and contends that the manufacturer is now attempting to get prison officials to return a supply of the drug that was purchased several months ago.

Midazolam and hydromorphone have never been used in executions in the United States, though Ohio and Kentucky list them as a backup for pentobarbital. The suit alleges Texas prison officials bought a supply of the drugs from Pharmacy Innovations, based in New York and Houston, for delivery to the Huntsville Unit Hospital.

“Pharmacy Innovations was completely unaware that the drugs sold to TDCJ/the Huntsville Unit Hospital were purchased with the intent to use them for lethal injections,” the suit states, noting the order was canceled after they found out. Prison officials are now looking for another compounding pharmacy as as source, according to the suit.

Because pharmaceutical manufacturers in recent years have stopped producing drugs used in executions, or have prohibited suppliers from selling to prison officials, Texas and other states “are turning to drugs and methods of execution that have never been used before,” the lawsuit states, even including some drugs that “are banned for use in animal euthanasia.”

“The Texas Department of Criminal Justice is doing everything in its power to shield the inevitable new protocols, which include untried drugs and non-FDA-approved drugs, from meaningful discourse or scrutiny,” the suit alleges.

Prison officials earlier confirmed that Texas’ supply of pentobarbital, the current execution drug, would expire at the end of September.