In reversal, Texas Supreme Court accepts execution drug appeal

The Texas Supreme Court will review a decision that required prison officials to identify the state execution drug provider


By Chuck Lindell
Austin American-Statesman

AUSTIN, Texas — The Texas Supreme Court announced Friday that it will review a lower court decision that required prison officials to identify the pharmacy that supplied the state with execution drugs under a 2014 legal challenge.

The state's highest civil court had rejected the case in June but reversed itself Friday -- a rarely granted move that came after lawyers for Texas Attorney General Ken Paxton argued that the effort to unmask the pharmacy was an attack on the death penalty that will jeopardize the continued availability of lethal-injection drugs.

Once identified, pharmacies tend to stop providing execution drugs over fear of a backlash from death penalty opponents, Paxton's lawyers told the Supreme Court.

State lawyers also argued the Austin-based 3rd Court of Appeals erred when it discounted threats of violence that the state's supplier, a compounding pharmacy that is open to the public in an unidentified urban area, could face if unmasked.

Texas laws do not require public information to be disclosed if doing so would create a threat of physical harm, state lawyers said.

The 3rd Court of Appeals, however, ruled in May 2017 that exceptions in the Texas Public Information Act did not apply to the information, sought in 2014 by three lawyers who represented death row inmates, because state lawyers could point only to vague threats of violence against suppliers.

Lawyers for the death row inmates said their victory was limited, applying only to the state's drug supplier in 2014, because a 2015 law allows prison officials to keep secret the name of a pharmacy or company that sells execution drugs to Texas.

Prison officials have refused to discuss whether the pharmacy from 2014 has continued to supply execution drugs.

The dispute began when the lawyers for several death row inmates, seeking to verify that the state's execution protocols would not produce an unconstitutional level of pain and suffering, asked the Texas Department of Criminal Justice to reveal the drugs used in executions, the source of the drugs and any testing performed to verify their effectiveness.

Prison officials declined to name the source, saying only that execution drugs were purchased from a licensed compounding pharmacy in Texas. An opinion from Paxton agreed that the source of execution drugs must be kept secret because of the threat of harm to the company and its employees.

But writing for the 3rd Court of Appeals, then-Justice Bob Pemberton said prison officials pointed only to isolated, vague threats against suppliers of execution drugs. That was not enough to show a "substantial threat of physical harm," a standard established by the Texas Supreme Court in 2011, to withhold the information under state law, Pemberton wrote.

By accepting the appeal, the Texas Supreme Court indicated that at least some of its nine justices were interested in revisiting that standard.

The court gave no reason for its reversal, noting only that Justice Jimmy Blacklock -- a former chief lawyer for Gov. Greg Abbott -- will not participate in the case.

Oral arguments will be heard Jan. 23, with a decision expected by the end of June.

McClatchy-Tribune News Service

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