Appeals court: Texas must reveal execution drug supplier

A Texas appeals court panel on Thursday upheld a lower court's order that the state's prison agency must identify its execution drug supplier.

The ruling from the 3rd Court of Appeals is in response to a lawsuit and has limited impact. Lawyers seeking to block the executions of two prisoners in early 2014 filed the suit. A state law that keeps the name of the drug provider confidential took effect Sept. 1, 2014. The law allows exceptions to the Public Information Act if releasing certain information would cause a substantial threat of physical harm.

One of the attorneys who filed the lawsuit, Maurie Levin, said the ruling means the Texas Department of Criminal Justice must disclose who the supplier was at the time the suit was filed.

"This doesn't apply to the present day," Levin said. "What they're required to do is disclose the supplier at the time of the request. It does not require them to disclose information about the current supplier."

State attorneys had argued identifying the provider of pentobarbital the Department of Criminal Justice uses for lethal injections would subject that supplier to physical harm, a sentiment the prison agency repeated Thursday.

"We will be appealing to the Texas Supreme Court," Department of Criminal Justice spokesman Jason Clark said. "As we have said repeatedly, disclosing the identity of the pharmacy will result in the harassment of the business and will raise serious safety concerns for the business and its employees."

The court upheld "base line principles" and promoted open government and public information, Levin said.

"They stuck to the law ... and the law affirms that those who are involved in government actions don't get to be anonymous and might be subject to criticism and protest," she said. "That's the nature of the beast. That is how our government works. I think the affirmation of those principles is really important."

The appeals court, in a 29-page ruling, focused on whether threats of harm outlined by the corrections department in the nation's busiest death penalty state were more than "mere speculation" and rose to the level of being "substantial."

The threats didn't, the court decided.

"Events seem to remind us periodically that 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 reactions that extend to physical violence," the appeals court wrote.

The availability of execution drugs has become an issue in many death penalty states after traditional pharmaceutical makers refused to sell their products to prison agencies for execution use.

In Texas, the Department of Criminal Justice, citing security concerns, has identified its provider only as a licensed compounding pharmacy. Similar lawsuits about drug provider identities have been argued in other capital punishment states.

The lawyers for the two Texas inmates failed to block their executions in April 2014 with arguments that the identity of the supplier was essential to verify the product's potency so it didn't cause unconstitutional pain. But State District Judge Darlene Byrne in Austin, who ruled in the lawyers' suit in December 2014, said the name was a matter of public record.

The appeals court heard arguments in the case a year ago.