Appeals court questions secrecy of Texas execution drug

AUSTIN, Texas (AP) — An appeals court panel considering whether Texas must divulge the source of its execution drugs questioned Wednesday whether keeping the information secret could cripple the Texas Public Information Act.

State attorneys who want the 3rd Texas Court of Appeals to overturn a lower court order to reveal the name argued that the provider of pentobarbital would face physical harm if its name was disclosed.

In written briefs, they had contended that a Texas pharmacy identified as a previous lethal injection drug supplier received “a firestorm of hate mail.”

“Pharmacies don’t have security details,” said Matthew Frederick, a deputy Texas solicitor general said. “Their only protection is anonymity. Once you take that away … there’s nothing they can do to protect themselves.”

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Philip Durst, the lawyer for three attorneys who represented two executed prisoners, said the threat against a compounding pharmacy that provided the sedative pentobarbital for executions was vague and doesn’t qualify for an exemption to the public information act.

Chief Justice Jeff Rose wondered where a line could be drawn “without blowing a hole” in the law and other judges raised similar concerns, the Austin American-Statesman reported.

“It is not as if there’s a known assailant out there who says any compounding pharmacy will be attacked,” Justice Cindy Bourland said. “It’s not that specific.”

The appeals court did not rule immediately and has no timetable for issuing a ruling. Its decision could be appealed to the state Supreme Court.

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The availability of execution drugs has become an issue in many death penalty states. Texas, by far the nation’s most active one, began using a compounding pharmacy as its source when traditional pharmaceutical makers refused to sell their products to prison agencies to be used for executions.

Texas Department of Criminal Justice officials, citing security concerns, have identified the provider only as a licensed compounding pharmacy. Similar lawsuits about whether states must identify their providers have been argued in states including Georgia, Arkansas and Missouri.

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, ruling in their lawsuit in December 2014, said the name was a matter of public record.

The lawsuit involves only the supplier from April 2014 until last Sept. 1, when a Texas law that keeps the name of the drug provider confidential took effect.

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Texas had released the name of its lethal injection drug suppliers for years. Then-Attorney General Greg Abbott, who is now governor, changed course in May 2014, citing a “threat assessment” signed by Texas Department of Public Safety director Steven McCraw. Texas law allows exceptions to the Public Information Act if releasing certain information would cause a substantial threat of physical harm.