Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 9/14/2015 5:37:53 PM JEFFREY D. KYLE Clerk No. 03-15-00044-CV THIRD COURT OF APPEALS 9/14/2015 5:37:53 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00044-CV *1 ACCEPTED [6920036] CLERK In the Court of Appeals for the Third Judicial District Austin, Texas
T EXAS D EPARTMENT OF C RIMINAL J USTICE , Appellant , v.
M AURIE L EVIN , N AOMI T ERR , AND H ILARY S HEARD , Appellees .
On Appeal from the
201st Judicial District Court of Travis County, Texas A PPELLANT ’ S R EPLY B RIEF K EN P AXTON S COTT A. K ELLER
Attorney General of Texas Solicitor General
C HARLES E. R OY R ICHARD B. F ARRER
First Assistant Attorney Assistant Solicitor General
General State Bar No. 24055470
O FFICE OF THE A TTORNEY G ENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1823 Fax: (512) 474-2697 richard.farrer@texasattorneygeneral.gov C OUNSEL FOR A PPELLANT O RAL A RGUMENT R EQUESTED *2 T ABLE OF C ONTENTS
Index Of Authorities ................................................................................ iii
Introduction ............................................................................................... 1
Argument ................................................................................................... 3
I. Plaintiffs’ Defense Of The District Court Is Founded On Erroneous Assumptions And Flawed Predicates. .................. 3 A. Plaintiffs Misunderstand And Advocate An Erroneous Standard For The Physical-Safety Exception. ....................................................................... 5 1. Cox Addresses Requests For Disclosure Of Specific Information; There Is No All-Or- Nothing Disclosure Scenario. ............................... 5 2. Cox Does Not Require An Actual Threat Or Plot To Commit A Violent Act. ............................. 9 3. Cox Requires Deference To Law- Enforcement Assessments Of The Probability Of Harm. .......................................... 10 B. Plaintiffs’ Invocation Of Past Attorney General Opinions Is Unavailing. ............................................... 13 C. Plaintiffs’ Arguments Are Not Improved By Their Brief’s Erroneous Characterization Of TDCJ’s Motives. ........................................................................ 15 D. Plaintiffs’ Mistaken View Of The Physical-Safety Exception Infects Their Expert’s Opinion. .................. 17 II. Plaintiffs Offer No Meaningful Response To The Need For A Remand In The Event The Court Determines TDCJ Is Not Entitled To Summary Judgment. ................... 19 i
Prayer ...................................................................................................... 19
Certificate of Service ............................................................................... 21
Certificate of Compliance ........................................................................ 22
ii
I NDEX OF A UTHORITIES
Cases
Boeing Corp. v. Paxton ,
No. 12-1007, 2015 WL 3854264 (Tex. June 19, 2015) ......... 2, 16, 17 Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers L.P. ,
343 S.W.3d 112 (Tex. 2011) ...................................... 2, 6, 7, 8, 10, 11 Other Authorities
Tex. Att’y Gen. ORD-673 (2001) ............................................................. 13
iii
I NTRODUCTION Plaintiffs mistakenly label the issues in this case as “‘small’” because a new amendment to the Texas Public Information Act (PIA)
prospectively exempts from future disclosure information revealing the
identity of execution-drug providers. Plaintiffs’ Br. 44. That label merely
begs the ultimate question: does a legitimate public-safety concern over
the release of a small portion of the requested information permit TDCJ
to withhold only that portion of the information—the supplier’s
identity—while releasing every other shred of requested information?
The ramifications of the district court’s erroneous ruling, in any event,
will be anything but “small,” because the standard governing when and
how a government agency can withhold sensitive information remains at
issue.
Plaintiffs posit a standard for the physical-safety exception that distorts the PIA’s balance of public safety and access to information.
According to Plaintiffs, the public’s right to information demands that
sensitive information cannot be withheld due to legitimate concerns
about physical harm, absent an actual identified threat or plot to commit
a violent act. While there is no dispute that public access to information
is important, that interest must give way to public safety where DPS or
other law enforcement has ample grounds to believe a threat to public
safety exists. That Plaintiffs’ standard would distort the PIA balance is
demonstrated by a recent decision in which the Texas Supreme Court
held that information implicating third-party privacy or property
interests may be withheld from public disclosure if disclosure would do
no more than “give advantage to a [business] competitor.” Boeing Corp.
v. Paxton , No. 12-1007, 2015 WL 3854264, at *7 (Tex. June 19, 2015).
Plaintiffs advocate a disclosure standard that does not reflect current
PIA jurisprudence.
Neutral law-enforcement warnings about a specific public-safety threat should not be subject to a battle of the experts in PIA cases, as
Plaintiffs’ advocate. That would leave the public’s safety hanging in the
balance. So long as law enforcement’s concerns relate to specific pieces
of requested information, and are not merely “vague assertions of risk,”
they should be heeded. Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers
L.P. , 343 S.W.3d 112, 119 (Tex. 2011).
Notwithstanding Plaintiffs’ implications to the contrary, this is a very important appeal that implicates serious public-safety concerns. The
circumstances of this case—as well as inevitable future scenarios
involving PIA requests for information that, if released, would foster a
substantial risk of physical harm—call for the Court to reverse the
district court and clarify the physical-safety exception.
A RGUMENT
I. P LAINTIFFS ’ D EFENSE O F T HE D ISTRICT C OURT I S F OUNDED O N
E RRONEOUS A SSUMPTIONS A ND F LAWED P REDICATES . Plaintiffs’ brief is founded on a series of invalid assumptions and predicates, which Plaintiffs use to set up and knock down arguments that
do not accurately reflect either TDCJ’s position or the contours of the
physical-safety-exception as outlined in Cox . Under a faithful application
of , TDCJ satisfied the physical-safety exception, as a matter of law.
See TDCJ Br. 31-47.
This appeal cannot hinge on three pieces of evidence that must demonstrate on their own an actual threat or plot to commit a violent act
against a compounding pharmacy, as Plaintiffs contend. See Plaintiffs’
Br. 18-26. What the evidence should do—and does—is demonstrate that
the release of requested information entails a substantial threat of
physical harm. The evidence does that here because it includes a
legitimate law-enforcement safety concern about possible violence that is
connected by evidence to the release of specific information. The evidence
that achieves that result is far more robust than is required, and it
includes:
• a firestorm of hate mail to the Woodlands pharmacy after its identity was revealed as a supplier of execution drugs; • the exploding-head blog posting, which juxtaposes a violent graphic with text identifying a compounding pharmacist; • testimony from Director Livingston expressing long-standing safety concerns at TDCJ about compounding pharmacies that supply execution drugs;
• Livingston’s testimony about the recent escalation of threats of harm in connection with executions, and about increased dangers in the overall criminal-justice environment; • the law-enforcement response to the firestorm surrounding the Woodlands pharmacy, which included dispatching officers to ensure protests were not violent;
• the Humez email, which (among other things) notes the obvious danger of violence and connects it to the revelation of the pharmacy’s identity;
• the FBI considered the threat environment at the Woodlands pharmacy serious enough to investigate Humez; • Director Livingston considered the Humez email an actual threat;
• Director of DPS McCraw’s testimony, including that the fervor surrounding the death penalty warns of possible violence;
• testimony from McCraw about the vulnerability of the compounding pharmacy;
• testimony from McCraw explaining that acts of violence are not necessarily preceded by actual threats; • testimony from Cunningham about policy issues that invoke passion, and comparing anti-death-penalty advocates to pro- life and animal-rights groups;
• testimony from Cunningham about violence in connection with prison issues as well as the Internet’s tendency to *9 increase the fervor surrounding a topic and access to methods and materials for those intent on violence; • testimony from Cunningham confirming that acts of violence are not necessarily preceded by actual threats or warnings; TDCJ Br. 3-11, 31-47.
A. Plaintiffs Misunderstand Cox And Advocate An Erroneous Standard For The Physical-Safety Exception.
As discussed in TDCJ’s opening brief and confirmed by Plaintiffs’ response brief, Plaintiffs’ arguments misunderstand Cox and the
physical-safety exception. See id . 47-51.
1. Cox Addresses Requests For Disclosure Of Specific Information; There Is No All-Or-Nothing Disclosure Scenario. does not mandate an all-or-nothing disclosure standard under
which all information on a given topic is either subject to disclosure or
may be withheld. Plaintiffs, however, argue as though the physical-
safety exception is an all-or-nothing inquiry. If there is no specific,
verifiable threat of violence, Plaintiffs argue, there can be no substantial
threat of physical harm. [1]
Plaintiffs misread Cox , which requires courts to “closely examine” each piece of requested information to determine whether disclosing it
would substantially threaten physical harm. , 343 S.W.3d at 118-19.
Plaintiffs, in contrast, focus on select evidence and ask if that evidence
amounts to an actual threat to commit violence; only if it does would
Plaintiffs apparently then concede the information (presumably, all
information) could be withheld. See Plaintiffs’ Br. 18-25; see also note 1
supra . Plaintiffs’ argument is particularly misguided given that TDCJ
has released all requested information except information identifying the
compounding pharmacy and pharmacist. TDCJ has not announced a
policy refusing to disclose anything on the topic of executions. Yet
Plaintiffs’ briefing gives that impression.
the record that any violence or threats occurred during an October 9, 2013, vigil”); id .
at 9 (arguing, “the documents upon which TDCJ and DPS rely do not contain any
discernible direct threats or any readily identifiable targeted threats against any
pharmacies or individuals connected to them or to the TDCJ (quotation marks
omitted)); id . at 9 (arguing that the exploding-head blog has no “wording [that] could
be loosely interpreted as threatening” (quotation marks omitted)); id . at 10 (arguing
Humez “did not make any actual threats” (quotation marks omitted)); id . at 16
(“There must be an actual, substantial threat of physical harm . . . .”); id . at 17 (“[T]he
[substantial threat of physical harm] must be based upon some past conduct that
legitimately leads to the conclusion of an actual substantial threat of actual physical
harm.”); id . at 30 n.9 (arguing there is not substantial threat of physical harm to
President Obama because a particular Internet posting was harmless); id . at 39
(indicating that TDCJ’s arguments fall short because they do not “establish[] any
kind of actual violence”).
Cox explains that “[t]he dividing line between disclosure and restraint must be determined by proof” in the form of “detailed evidence
or expert testimony” connecting law enforcement’s safety concerns with
specific requested information. Cox , 343 S.W.3d at 119. It is erroneous
to argue, as Plaintiffs’ brief repeatedly does, that there can be no
substantial threat of physical harm (presumably for all purposes) simply
because TDCJ does not point to an existing plot to commit a violent act
at a compounding pharmacy. See note 1 supra . It is equally erroneous
to require a past plot or act of violence. See Plaintiffs’ Br. 17 (“[T]he
[substantial threat of physical harm] must be based upon some past
conduct that legitimately leads to the conclusion of an actual substantial
threat of actual physical harm.”); id . at 30 n.9 (arguing no substantial
threat of physical harm to President Obama because a particular
Internet posting was harmless). Indeed, an assessment of the probability
of harm, as contemplated by , would be of little use if it could only be
invoked after an actual existing threat or plot was known.
An example from Plaintiffs’ brief illustrates this pervasive error.
Plaintiffs raise an incident that occurred after Osama bin Laden was
killed and a troubling online posting noted, “I hope President Obama has
beefed up security so he can be protected if anyone comes after him.” Id .
Because an investigation revealed the posting was made by a harmless
middle-school child, Plaintiffs announce the (largely irrelevant)
conclusion that the posting itself was not a substantial threat of physical
harm. See id .
The conclusion Plaintiffs’ draw from their Obama example demonstrates the depth of their misunderstanding. If law enforcement
expressed concern that the President’s life was at significant risk
following the bin Laden raid, then a request for information revealing
specific details about the President’s security arrangements should fall
within the physical-safety exception as a matter of law. , 343 S.W.3d
at 118-19 (finding that specific information about “the number of guards
protecting the governor” qualified for the exception because it could give
a potential and as-yet unidentified person who might be “intent on
harming” the governor “the means to accomplish that goal”). Plaintiffs’
formulation of the exception, however, apparently would not permit that
result. See Plaintiffs’ Br. 30 & n.9 (arguing that the proper inquiry is
whether any “bit of information” “is an actual threat” and concluding that
the child’s post “was not a STPH [substantial threat of physical harm].”).
Likewise, in this case there is ample evidence specifically connecting the single item of requested information to law enforcement’s
concerns about violence. Whether there is, for example, an actual bomb
threat or currently existing plot against a provider of execution drugs
cannot be the sole issue. TDCJ has demonstrated through evidence how
law enforcement’s assessment of a high-threat environment is connected
to the disclosure of the identity of the supplier of pentobarbital. See
TDCJ Br. 31-47. The physical safety exception, as explained in Cox , is
therefore satisfied. See TDCJ Br. 31-47.
2. Cox Does Not Require An Actual Threat Or Plot To Commit A Violent Act.
Cox explains—contrary to Plaintiffs’ arguments—that the threat of physical harm arises from the disclosure of specific information ; Cox does
not provide, as Plaintiffs advocate, a standard for determining whether
or not there is an actual threat or plot to commit a violent act. also
does not require proof of an actual threat or plot to commit physical
violence as a prerequisite to shielding specific information from
disclosure. It does not require evidence that such a threat is likely or
even that violence is likely. Nor does it require evidence of a past incident
of violence by a particular person or group.
Cox requires a substantial threat of physical harm, which can be demonstrated through a DPS or other law-enforcement expert’s
assessment of the probability of harm, as well as expert testimony or
other evidence that shows how the release of specific information
implicates that assessment of harm or otherwise shows a substantial
threat of physical harm. TDCJ has met that burden. See TDCJ Br. 31-
47.
3. Cox Requires Deference To Law-Enforcement Assessments Of The Probability Of Harm.
Plaintiffs’ brief essentially ignores that the “probability of harm” in a given circumstance is best assessed by “law enforcement experts” or
“DPS,” and that law-enforcement assessments on that topic must receive
deference from courts. Cox , 343 S.W.3d at 119. In a sense, Plaintiffs
argue that because TDCJ has not pointed to a specific violent act or
existing plot to commit one at a compounding pharmacy, there never will
be one. Plaintiffs rail against deferring to law enforcement warnings
about public-safety threats because they disagree with DPS’s
assessment. But that these plaintiffs disagree with DPS’s assessment of
an unacceptably high probability of harm cannot change the fact that,
under , that determination is for DPS to make.
Cox does not contemplate a “battle of experts” in every case to resolve the precise degree of probability of harm presented by a given
situation. Instead, Cox requires that “a certain amount of deference must
be afforded DPS officers,” unless their warnings are mere “vague
assertions of risk.” Id . And as already discussed in the opening brief, the
assessments from DPS and law-enforcement experts in this case
supporting withholding the requested information are no mere “vague
assertions of risk.” See TDCJ Br. 38-47.
Cox does not demand that a law-enforcement assessment of the probability of harm take on the form of a full-blown expert opinion, or
qualify under Plaintiffs’ expert’s definition of a “threat assessment.” See
Plaintiffs’ Br. 31-36 (arguing that an assessment of the probability of
harm must take on a particular form, as outlined by Plaintiffs’ expert
Parker). True, Cox anticipates the physical-safety exception could be
established through expert testimony. Cox , 343 S.W3d at 119. But it
also envisions the exception could be established through other evidence.
Id . Moreover, there is no indication in the opinion or the Cox record
on appeal that any expert testimony was presented at all until after the
case was remanded by the Supreme Court; DPS officials testified at the
initial Cox trial, but not as expert witnesses. [2]
A law-enforcement assessment, especially from DPS, should be treated like an agency determination entitled to deference. See TDCJ Br.
26. Cox would not have spoken of “deference” to DPS if the Court really
intended to set up a battle of experts. Choosing between competing
expert testimony is the opposite of deference. Accordingly, there is no
place in Cox for judges to act as security officers.
Putting these principles into practice and returning to the Obama example above, a law-enforcement assessment that disclosure of
information about the President’s schedule would present an
unacceptably high “probability of harm” “must be afforded” deference. Id .
If such an assessment were presented in response to a request for
disclosure, then disclosure would turn on evidence demonstrating the
effect that any disclosure would have on the secrecy of the President’s
schedule. Plaintiffs surely would not argue that in such a scenario the
law-enforcement assessment should be susceptible to a battle of the
experts. The Court should correct the district court’s acceptance of an
unworkable legal standard under which such a battle will occur in every
physical-safety-exception case.
B. Plaintiffs’ Invocation Of Past Attorney General Opinions Is Unavailing.
Although Plaintiffs do not make any meaningful argument based on past Attorney General Opinions, they nonetheless refer to several past
informal letter rulings to support a contention that the underlying
Attorney General opinion here “was a bit of an about-face.” Plaintiffs’ Br.
2. The Court need not be side-tracked by Plaintiffs’ reference to these
letter rulings; the letter rulings do not support Plaintiffs’ arguments and,
in any event, are not precedential. S ee Tex. Att’y Gen. ORD-673 (2001)
(describing the difference between a nonprecedential informal letter
ruling and a prior Attorney General determination).
Plaintiffs begin with informal letter ruling OR-17507 (2010), which did not involve the physical-safety exception. See Plaintiffs’ Br. 3.
first announced the exception over half a year after OR-17507 was issued.
Letter ruling OR2010-17507 is not relevant here.
Next, Plaintiffs invoke informal letter ruling OR-10208 (2012), which was issued after Cox and involved a terse discussion of the “new
standard.” Id . Rejecting application of the physical-safety exception, the
letter ruling noted that TDCJ sought the exception based solely on a
belief that “harassment” of execution-drug suppliers “could escalate into
violence.” Id . Here, in contrast, TDCJ has fulfilled ’s requirements
by securing a DPS assessment of the probability of harm, providing two
expert opinions on the probability of harm, and connecting the disclosure
of the requested information with the unacceptably high probability of
harm identified by law-enforcement experts. Further, OR-10208 states
that it “is limited to the particular information at issue in this request
and limited to the facts presented to us; therefore, this ruling must not
be relied upon as a previous determination regarding any other
information, or any other circumstances.” Id . at 4. Texas Attorney
General Opinion OR-10208 (2012) is therefore also of no assistance to
Plaintiffs.
C. Plaintiffs’ Arguments Are Not Improved By Their Brief’s Erroneous Characterization Of TDCJ’s Motives.
Plaintiffs brief incorrectly accuses TDCJ of seeking to withhold the identity of the compounding pharmacy and pharmacist under the
physical-safety exception because “suppliers will stop selling these drugs
to TDCJ if their identities are known.” Plaintiffs’ Br. vi; see also, e.g. , id .
at vii (ascribing to TDCJ a motivation to invoke the exception out of
“general concerns that LID [execution-drug] suppliers might not continue
to sell to TDCJ if they got bad publicity”); id . at 16 (implying that TDCJ
invokes a substantial-threat-of-lost-business exception). These
accusations are incorrect and, in any event, do not advance Plaintiffs’
arguments.
TDCJ invoked the physical-safety exception out of concern for public safety. [3] It is not TDCJ’s position that the physical-safety exception
shields information from disclosure because disclosure might have an
adverse effect on a company doing business with TDCJ, or because
disclosure would make obtaining execution drugs more difficult for
TDCJ.
Even if TDCJ were to seek protection of compounding-pharmacy information for economic reasons like those ascribed to TDCJ by
Plaintiffs, there is a strong likelihood the information would in fact be
withheld from disclosure. The Texas Supreme Court recently clarified in
Boeing that even core-public information may be withheld from
disclosure when it is information implicating the “privacy and property
interests of a private party” (here, the pharmacy) and disclosure of the
information “would give advantage to a competitor” of the private party.
Boeing , 2015 WL 3854264, at *7 (internal quotation marks omitted).
Thus, the Texas Supreme Court has already indicated that government
agencies (or private parties) may shield information from disclosure
under the PIA for economic or privacy reasons, and the showing required
to do so is hardly onerous. Cf . Plaintiffs’ Br. 16 (arguing, the “Supreme
Court’s formulation of the [physical-safety] standard is intentionally high
because we are dealing with an exception to core public information.”).
Given that the physical-safety exception was introduced into the PIA’s
scheme by the Texas Supreme Court, and given Boeing interpreted the
PIA to shield third-party information from disclosure by showing merely
that disclosure “would give advantage to a competitor,” Boeing , 2015 WL
3854264, at *7 (quotation marks omitted), *9, Plaintiffs’ (erroneous)
assertions about TDCJ’s supposed motivations for withholding the
requested information are out of touch with current PIA jurisprudence
and do not assist their arguments.
D. Plaintiffs’ Mistaken View Of The Physical-Safety Exception Infects Their Expert’s Opinion.
The opinion of Plaintiffs’ expert, Parker, should not have been considered at all, as discussed in TDCJ’s opening brief. See TDCJ Br. 51-
58. Moreover, Plaintiffs’ erroneous view of Cox and its standard taint
Parker’s opinion and testimony because Parker’s inquiry mirrors
Plaintiffs’ misunderstanding of . Parker was concerned only with
determining whether the evidence he reviewed demonstrated an actual
threat to commit a violent act against an execution drug provider, and
whether Cunningham and McCraw (TDCJ’s experts) did all Parker felt
necessary to make that same (inappropriate) determination. Parker did
not, therefore, independently inquire into whether disclosing information
(and, in particular, information identifying the compounding pharmacy)
presents an unacceptably high probability of harm. See id. 54-56.
The defense of Parker’s opinion in Plaintiffs’ brief only highlights Parker’s inappropriate inquiry because it stresses that he was answering
the wrong question. Thus, Plaintiffs’ brief merely emphasizes:
• “the documents upon which TDCJ and DPS rely do not contain any discernible direct threats or any readily identifiable targeted threats against any pharmacies or individuals connected to them or to the TDCJ,” Plaintiffs’ Br. 9 (quotation marks omitted), 34; • “the messages and reviews about the Woodlands Pharmacy” were not threats and only “amount to ‘criticisms’ of the pharmacy,” id at 9;
• the exploding-head blog posting contained “no wording that could be loosely interpreted as threatening to the subject pharmacies or to anyone else, id . at 34 (quotation marks omitted), see also id . at 9; • Plaintiffs’ belief that expert testimony is needed to establish “what a ‘ threat assessment ” is in law enforcement parlance,” id . at 31; • “[a] ‘threat assessment’ is an investigation . . . to determine if a threat made to a person is a viable threat,” id . at 32; • “no true ‘threat assessment’ was ever performed by TDCJ”; id . at 10, 35;
• Parker’s belief that a threat assessment for purpose of the physical- safety exception requires speaking to or confronting a person making an actual threat of violence; id .at 32; • Parker’s belief that it was “unlikely that [Humez] intended to commit any violence himself,” id . at 25;
• Parker’s belief that Humez “did not actually make any threats,” id . at 10;
Parker’s opinion and testimony not only should never have been
considered, they also involved the wrong inquiry. See TDCJ Br. 51-56.
II. P LAINTIFFS O FFER N O M EANINGFUL R ESPONSE T O T HE N EED
F OR A R EMAND I N T HE E VENT T HE C OURT D ETERMINES TDCJ I S N OT E NTITLED T O S UMMARY J UDGMENT .
TDCJ’s opening brief discussed TDCJ’s alternative request for a remand even if the Court determines that TDCJ is not entitled to
summary judgment. Plaintiffs’ brief offers no meaningful response.
Accordingly, because Plaintiffs, at most, could only raise a genuine issue
of disputed fact regarding the applicability of the physical-safety
exception, the portion of the district court’s order granting Plaintiffs’
summary-judgment motion should be reversed and the case remanded
for trial, in the event the Court does not render judgment for TDCJ.
P RAYER The Court should reverse the district court and render judgment for TDCJ or, in the alternative, remand the case for trial on the merits.
Respectfully submitted.
Dated: September 14, 2015
K EN P AXTON
Attorney General of Texas C HARLES E. R OY
First Assistant Attorney General S COTT K ELLER
Solicitor General
/s/ Richard B. Farrer R ICHARD B. F ARRER Assistant Solicitor General State Bar No. 24069702 O FFICE OF THE A TTORNEY G ENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-2923 Fax: (512) 474-2697 richard.farrer@texasattorneygeneral.gov C OUNSEL FOR A PPELLANT *25 C ERTIFICATE OF S ERVICE I hereby certify that on this the 14 th day of September, 2015, a true and correct copy of the foregoing document was served via File &
ServeXpress to all counsel of record.
Philip Durst
Manuel Quinto-Pozos
D EATS , D URST , O WEN & L EVY , P.L.L.C.
1204 San Antonio, Ste. 203
Austin, TX 78701
Telephone: (512) 4 7 4-6200
Facsimile: (512) 474-7896
pdurst@ddollaw.com
mqp@ddollaw.com
Maurie Amanda Levin
A TTORNEY AT L AW
211 South St., #346
Philadelphia, PA 19147
Telephone: (512) 294-1540
Facsimile: (215) 733-9225
maurielevin@gmail.com
/s/ Richard B. Farrer Assistant Solicitor General *26 C ERTIFICATE OF C OMPLIANCE In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this brief contains 3,970 words, excluding the portions of the brief exempted
by Rule 9.4(i)(1).
/s/ Richard B. Farrer Assistant Solicitor General
[1] See e.g. , Plaintiffs’ Br. vii (arguing, “no history or actual violence against a supplier of Lethal Injection Drugs has ever occurred or been threatened”); id . at 4 (arguing, “there has never been any violence, threat or physical harm against any supplier of [execution drugs] in Texas”); id . at 6 (arguing, “no evidence that once the Woodlands’ identity became public that there was ever any physical harm or any risk of physical harm (substantial or otherwise) against the pharmacy”), id . (noting, “no evidence in
[2] The relevant record for these purposes is the record that was before the Texas Supreme Court when it decided Cox , not the record from subsequent remanded proceedings in which DPS went beyond what is required (as it did in this case) by proffering expert opinions on the probability of harm and the threat to public safety from disclosure of requested information. For much the same reason, Plaintiffs’ reference to the post-remand Cox record does nothing to support its arguments in this case. See Plaintiffs’ Br. 18 (invoking the record from post-remand proceedings that supported withholding all requested information, not merely a portion of the requested information as is the case here), 39 (same).
[3] CR.552 (“The department seeks to withhold the identifying information of the pharmacy and pharmacist who provide the drugs used in executions and other information relating to the provision of said drugs because release of the information would jeopardize the safety of the persons associated with the pharmacy.”); CR.558 (Affidavit of Brad Livingston noting, “TDCJ and selling pharmacies have long been concerned about the safety of the pharmacists providing the drugs used in executions, based on hate mail and threats to the pharmacists”); CR.639-40, 701-06 (testimony from Livingston regarding concern for public safety should the identity of the pharmacy be disclosed).