Texas must reveal where it got execution drugs, the Texas Supreme Court affirms

The Texas Department of Criminal Justice must reveal the name of the pharmacy that has supplied deadly execution drugs, the state’s highest civil court affirmed on Friday.

Last May, the Austin-based 3rd Court of Appeals ruled that the agency had to provide that information, despite its argument that doing so could endanger the supplier. The Texas Supreme Court declined this week to hear the agency’s appeal, leaving the lower court ruling in place.

The plaintiffs, three death row lawyers in Texas, said on Friday that they hoped the state would now finally honor the original district court's 2014 order that commanded the state to disclose the information. 

"Today’s decision is a win for the fundamental principles of transparency and open government,” said Maurie Levin in a statement.

The state has continually fought not to identify their 2014 supplier under the original court ruling.

“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,”  TDCJ spokesman Jason Clark told the Austin American-Statesman at the time. 

The state has 15 days to file a motion for the court to reconsider its decision, according to a court clerk. The department said Friday it plans to do so.

The lawsuit was filed in 2014 after Gov. Greg Abbott, then the attorney general, said the state could withhold the information because drug suppliers faced “real harm.” That was a reversal of three of his own previous rulings that the information was public.

When challenged in court, lawyers for the agency argued that the pharmacy’s identity was an exception to the Texas Public Information Act, which aims to protect the public’s right to know about how taxpayers’ money is spent. But the appeals court said last May that information did not need to be shielded because the agency failed to show that the pharmacy would face “substantial threat of physical harm.”

The Texas Legislature passed a law in 2015 shielding the identity of the supplier and anyone else involved in an execution after the law passed. But in the meantime, this years-old case has continued to progress, with the plaintiffs fighting to reveal the name of its suppliers before the law passed. TDCJ would not be required to release the name of more recent suppliers.

Since 2013, the department has used compounding pharmacies to obtain doses of pentobarbital, the drug it currently uses in executions. The state has not received a new supply of drugs since February 2017, according to records obtained by The Texas Tribune.

Currently, there are nine executions scheduled in Texas and nine doses of pentobarbital in stock, according to records received by the department Friday morning. But at least five of those executions are scheduled after the beyond-use dates, similar to an expiration date, have passed.