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.