The 3rd Court of Appeals today denied two death row inmates' request to stop the state from using a new lethal injection drug. Attorneys for the inmates — including Cleve Foster, who is scheduled to be executed tomorrow — said they would appeal the to the Texas Supreme Court.

The two inmates sued the state last week, alleging that the Texas Department of Criminal Justice violated state transparency laws by making in secret the decision to use a new execution drug. They say the state did not abide by the Administrative Procedure Act, which requires public input in the process.

On Friday, Travis County District Judge Stephen Yelenosky said the act does not apply to rules the TDCJ makes for its inmates. The appeals court upheld that decision.

Texas and other states with the death penalty were forced to find a substitute for the anesthetic sodium thiopental when its only American producer, Hospira Inc. of Lake Forest, Ill., announced in January that it would stop selling the drug. Like other states have, Texas said it will use pentobarbital instead of sodium thiopental. Foster could be the first inmate executed with the new drug.

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