Rejecting an appeal from state officials, the Texas Supreme Court on Friday let stand a lower-court ruling requiring Texas to identify the pharmacy that supplied its execution drugs as part of a 2014 legal challenge.
The state’s highest civil court declined to accept the case without comment, other than to note that Justice Jimmy Blacklock — formerly a legal adviser to Gov. Greg Abbott — did not participate in discussions of the case.
Prison officials have worked for years to avoid identifying the source of the state’s lethal injection drugs, arguing that the publicity would deter suppliers from selling to the state over fears of protests and threats from death penalty opponents.
The Austin-based 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.
Maurie Levin, one of the lawyers who sought the information, praised the court’s action as a victory for transparency but said its impact will likely be limited by a 2015 law that allows state prison officials to keep secret the name of the pharmacy or company that sells execution drugs to Texas.
“We are hopeful that in light of the Supreme Court’s decision today, the state will finally honor the district court’s 2014 order commanding the state to disclose the source of its lethal injection drugs. Today’s decision is a win for the fundamental principles of transparency and open government,” Levin said.
Prison officials will ask the Supreme Court to reconsider its ruling, said Jeremy Desel, spokesman for the prison agency.
Motions for a rehearing, however, are rarely granted by the court.
The dispute began when the lawyers for 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 Public Safety 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 state Attorney General Ken 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 three-judge panel, 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.
Allowing governments to withhold information based on a threat of violence, Pemberton warned, could vastly expand the amount of information that could be kept from the public.
“Virtually all who participate in our government and its functions face not only the potential comment and criticism that are fair game in our free society, but will at some point bear some degree of risk of … physical violence,” he wrote.