Rumors of an alleged affair between the judge and prosecutor in the trial of death row inmate Charles Dean Hood have created hand wringing among legal ethicists but have not derailed Mr. Hood's scheduled execution next month.

So defense lawyers are trying an unusual tack: they've asked a Collin County court at law to subpoena retired Judge Verla Sue Holland and former district attorney Tom O'Connell Jr. as part of a possible civil rights lawsuit.

The lawsuit that could result would be a claim "that Judge Holland or Tom O'Connell deprived Charles Hood of his constitutional rights by not revealing this romantic relationship prior to his capital murder trial," defense attorney Greg Wiercioch said.

The filing seeks not only to depose Judge Holland and Mr. O'Connell, but also asks the court to order the two to produce any letters, cards, and gifts exchanged between them; all credit card or store receipts for any gifts, all photographs and videotapes depicting the two together and all e-mails or text messages pertaining to allegations about their alleged romantic relationship.

"It is an unusual maneuver," Mr. Wiercioch admitted. "It's the only way we feel we're going to be able to get to talk to Judge Holland and the former dist attorney Tom O'Connell.

"Nobody's heard anything from them, and it's getting close to the execution date. We need to find some method of asking them or court ordering them to cooperate."

Neither Judge Holland or Mr. O'Connell returned calls for comment. Both have remained silent since the controversy erupted two months ago, shortly before Mr. Hood was scheduled for execution.

Assistant district attorney John Rolater declined comment Tuesday, citing pending litigation.

Mr. Hood's defense team has been trying to get information about the alleged affair, which they say would have violated Mr. Hood's ability to get a fair trial, since a few days before his last execution date in June. At that time defense lawyers filed an affidavit from a former assistant district attorney who said the relationship was "common knowledge."

State and federal courts refused to stop the execution, however, saying there was nothing new in the filings because there was no direct knowledge. But in another unusual twist in an unusual case, officials at the Texas Department of Criminal Justice halted the lethal injection saying they did not have enough time to carry it out before the death warrant expired.

Defense lawyers have been trying to find information about the alleged relationship for years. They filed a discovery motion seeking information several months ago, but "I haven't heard anything from the DAs office on it," Mr. Wiercioch said.

After consulting Lonny Hoffman, a civil procedure expert at the University of Houston Law Center, they decided to try to obtain the information through civil courts.

"There's no doubt it's unusual," Mr. Hoffman said. But, "I'm not sure I can imagine a better use of (the rules) than to uncover facts that, if true, casts such a serious black cloud over the judicial process."

If the prosecutor "is having an affair a relationship with the judge that's undisclosed at the time of trial, it's heinous,"

Defense lawyers also referred to a statement from the Association of Professional Responsibility Lawyers, calling for courts to order discovery, and a statement from three dozen legal ethicists saying that a romantic relationship between the judge and prosecutor would violate Mr. Hood's constitutional rights.

Mr. Hood was convicted in 1990 for the robbery and slaying of Ronald Williamson and Tracie Lynn Wallace the year before. He is scheduled to die Sept. 10.