Texas Court Hears Argument in State’s Appeal of Drug Secrecy Ruling

Texas’ Third Court of Appeals heard oral argu­ment on May 11 on the state’s appeal of a tri­al court rul­ing requir­ing it to reveal the iden­ti­ty of its lethal injec­tion drug sup­pli­er in a pair of April 2014 exe­cu­tions. The suit, ini­tial­ly brought on behalf of the two exe­cut­ed pris­on­ers, now impli­cates Texas’ Public Information Act. The pris­on­ers’ attor­neys argued that iden­ti­fy­ing the sup­pli­er of pen­to­bar­bi­tal, the drug used by Texas in exe­cu­tions, was nec­es­sary to ver­i­fy that the chem­i­cals had been pre­pared cor­rect­ly and would not cause an uncon­sti­tu­tion­al­ly painful exe­cu­tion. Then-Attorney General (now Texas Governor) Greg Abbott said that releas­ing the drug sup­pli­er’s iden­ti­ty would present a threat of phys­i­cal harm, because a pre­vi­ous drug sup­pli­er had received hate mail and threats after being iden­ti­fied. In December 2014, District Judge Darlene Byrne reject­ed Abbott’s argu­ment and ordered Texas to dis­close the iden­ti­ty of the com­pound­ing phar­ma­cy that had pre­pared the drug. The state appealed that deci­sion. In Wednesday’s hear­ing, defense lawyers char­ac­ter­ized the alleged threats as ​“vague” and non­spe­cif­ic and said they were no basis to bar pub­lic dis­clo­sure of the infor­ma­tion. Prosecutors, with­out iden­ti­fy­ing the source of any threat, argued that the safe­ty of the phar­ma­cy was at risk because, ​“There’s an iden­ti­fi­able group of peo­ple who think lethal injec­tion is wrong — moral­ly, polit­i­cal­ly and social­ly — and they are deter­mined to oppose it.” Chief Justice Jeff Rose raised con­cerns about the impli­ca­tions of allow­ing a broad exemp­tion to the Public Information Act, ask­ing, ​“Where do we draw the line … with­out blow­ing a hole in the (Public Information Act) big enough to dri­ve a truck through any­time the gov­ern­ment says, ​‘Well, gee, this can cause harm?’ ” Justice Bob Pemberton said, ​“It seems a poten­tial­ly bound­less exemp­tion.” The scope of the deci­sion is like­ly to be lim­it­ed, because the Texas leg­is­la­ture passed a law shield­ing exe­cu­tion drug sup­pli­ers, which took effect in September 2015.

(M. Graczyk, ​“Texas Fighting Order to Disclose Execution Drug Supplier,” Associated Press, May 10, 2016; M. Ward, ​“Court weighs secre­cy exemp­tion for exe­cu­tion-drugs,” Houston Chronicle, May 11, 2016.) See Lethal Injection.