Texas Supreme Court reverses course, will hear case over whether state can keep execution drug supplier secret

In June, it looked like Texas would have to name a pharmacy that had supplied the state with execution drugs. But with a Texas Supreme Court reversal on Friday, that decision is now up in the air.

This summer, the high court declined to review a Austin-based 3rd Court of Appeals decision that found the Texas Department of Criminal Justice must provide identifying information for an execution drug supplier. But the state requested a rehearing, and on Friday, the justices granted it in a rare reversal.

The case is now on hold until after oral arguments on Jan. 23.

"We are pleased by the Texas Supreme Court ruling to grant a rehearing and look forward to January," said Jeremy Desel, spokesperson for Texas Department of Criminal Justice. "Releasing publicly the identity of any supplier of execution drugs raises serious safety concerns that real harm could come to the business operators and its employees."

The lawsuit represents an ongoing battle over the secrecy that surrounds Texas’ execution drugs as other states struggle to keep lethal doses in stock.

Brought forward in 2014 by three Texas death penalty lawyers, the suit sought the name of a pharmacy that provided compounded pentobarbital, the sole drug currently used in Texas executions. The suit was filed after Republican Gov. Greg Abbott, then the attorney general, said the state could withhold identifying information of drug suppliers because the pharmacies faced “real harm.” Previously, he had said in three rulings that the information was public.

The death row lawyers have said they requested the information to ensure potency and purity of the drugs used to put their clients to death, citing drug scarcity and botched executions. In the same year as the lawsuit was filed, several states gained national attention for grizzly executions using new, experimental drug combinations.

"This is the gravest task that the state carries out, and the Supreme Court is giving it due consideration given the seriousness of the issue," said Maurie Levin, one of the lawyers named in the lawsuit, of the Friday decision. "I trust that the court will uphold the principals of transparency and open government that are the foundation of this litigation."

Before the decision on Friday, Texas had lost the lawsuit at every point in the court process. Though the 2015 Texas Legislature passed a law that made secret any identifying information of those involved in executions, including drug suppliers, the law was not retroactive. It's unclear whether the 2014 supplier is the same pharmacy that provided drugs most recently to the state in June.

The department claimed in its last-ditch request for a rehearing that revealing the identity of its supplier could endanger the pharmacy as well as the existence of the death penalty nationwide. In a plea for the Texas Supreme Court to reconsider its June decision, the state said the high court’s denial had caused a pharmacy that had provided drugs to the state to say in an anonymous affidavit that it would no longer conduct business with Texas Department of Criminal Justice if its identity was revealed. It’s unknown if the anonymous pharmacy is the state’s current supplier.

“This scenario confirms the U.S. Supreme Court’s recent warning on this issue,” wrote Texas Solicitor General Scott Keller, referring to a 2015 decision by Justice Samuel Alito on lethal injection drugs. “Death-penalty opponents have created ‘practical obstacle[s]’ to carrying out the death penalty by ‘pressur[ing] pharmaceutical companies to refuse to supply the drugs used to carry out death sentences.’”

But according to the lower appellate court’s ruling in 2017, the state needs to show that the disclosure of such information would create a substantial threat of physical harm — not economic harm or unwanted attention — if it wants to withhold the information. The court emphasized it is not the role of the court to focus on threats of harm to “privacy or economic interests.”

The death penalty lawyers snapped back at the state in their response filed last month, claiming Texas’ claims of threats to the death penalty were overblown. They said there has never been any violence toward execution drug suppliers, and emphasized that any decision by this court would only be limited to naming the 2014 supplier, since the 2015 shield law would keep secret any suppliers after that.

“Guess what? Contrary to the tack taken in the motion for rehearing, the sky is not falling,” the filing said.