EX­E­CU­TION

San Antonio Express-News (Sunday) - - Metro - keri.blakinger@chron.com

as’s lethal-in­jec­tion drugs, which jeop­ar­dizes the State’s abil­ity to carry out the death penalty,” the state wrote in a fil­ing this year.

But the death row lawyers be­hind the law­suit framed it as a mat­ter of open­ness and avail­abil­ity of in­for­ma­tion to the pub­lic.

“This case is re­ally about trans­parency and open gov­ern­ment,” Levin said in June. “For the state of Texas to fight at ev­ery turn to keep the ex­e­cu­tion process, even from four years ago, be­hind closed doors is just out­ra­geous.”

Even if the court again finds that the state should re­lease the source of its drugs, the rul­ing would have a lim­ited ef­fect; in 2015, the year after lit­i­ga­tion in the case started, the Leg­is­la­ture passed a law mak­ing se­cret the iden­ti­ties of any ex­e­cu­tion drug sup­pli­ers. Any court de­ci­sion could only force the re­lease of in­for­ma­tion from be­fore that time.

The law­suit at the cen­ter of it all be­gan four years ago, after the Texas prison sys­tem re­fused to name its drug sup­plier in re­sponse to pub­lic records re­quests from Levin and two other death penalty at­tor­neys. The at­tor­ney gen­eral sided with prison of­fi­cials, so Levin and her col­leagues filed suit.

In 2017, an Austin-based court of ap­peals sided with the death row lawyers, so the state ap­pealed the case up to the Texas Supreme Court. In June, that court up­held the lower court’s de­ci­sion.

Days after the rul­ing, the state filed a mo­tion for re­hear­ing, ar­gu­ing that it was an at­tack on the death penalty that would have “po­ten­tially dev­as­tat­ing con­se­quences” for pub­lic safety.

“If al­lowed to stand, the court of ap­peals’ de­ci­sion di­rects the pub­lic un­mask­ing of a sup­plier in Texas’s lethal-in­jec­tion drugs, which jeop­ar­dizes the State’s abil­ity to carry out the death penalty,” the state claimed in its fil­ing.

By way of proof, at­tor­neys for the state brought up lit­i­ga­tion filed by Arkansas in­mates who ear­lier this year sought to force Texas to re­veal the source of its lethal in­jec­tion drugs so that they could ask Arkansas to use the same drugs.

In re­sponse, the phar­macy filed an af­fi­davit say­ing it would no longer do busi­ness with the prison sys­tem its iden­tity was dis­closed. The state ar­gued that there could be “grave con­se­quences” for the phar­macy, which is a “soft tar­get” in an “ur­ban area, whose only de­fense is its anonymity.”

There have not been any known at­tacks on phar­ma­cies in con­nec­tion with sup­ply­ing lethal in­jec­tion drugs, ac­cord­ing to Robert Dun­ham of the Death Penalty In­for­ma­tion Cen­ter.

In late July, the state of Ari­zona chimed in, fil­ing a brief in sup­port of the Lone Star State’s po­si­tion.

“If per­mit­ted to stand, the Court of Ap­peals’ opin­ion will bring dire con­se­quences that rip­ple be­yond Texas and threaten the death penalty’s op­er­a­tion na­tion­wide,” the brief noted. “Put sim­ply, pub­lic dis­clo­sure of a rare and valu­able sup­plier of lethal-in­jec­tion drugs chills other cur­rent and po­ten­tial sup­pli­ers, and fa­cil­i­tates the es­ca­lat­ing ‘guer­rilla war against the death penalty.’ ”

On Fri­day, the state’s high­est civil court granted the mo­tion, and both sides will ap­pear Jan. 23.

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