By Michael Graczyk
Associated Press
HOUSTON — Texas’ new supplier of execution drugs will remain a secret — at least for now — after the state Supreme Court on Friday temporarily blocked a ruling that the prison agency must disclose the information to attorneys for two death row inmates.
Earlier Friday, an appeals court upheld a district judge’s ruling from a day earlier that prison officials should disclose the source of a new batch of pentobarbital to the attorneys of the two inmates scheduled to be executed with the drug next month.
Although the high court’s order doesn’t address the merits of the case, it allows prison officials to withhold the supplier’s name while the justices consider the issue.
Lawyers for the condemned killers filed a lawsuit in the case this week. The Texas Department of Criminal Justice wants to keep the information secret, citing escalating threats of violence against execution drug providers.
A three-judge panel of the 3rd Texas Court of Appeals earlier Friday upheld a ruling the previous day from State District Court Judge Suzanne Covington, who said the name of the supplier must be disclosed.
The Texas Attorney General took that ruling to the Texas Supreme Court.
Covington’s order would provide the information only to attorneys for condemned prisoners Tommy Lynn Sells and Ramiro Hernandez-Llanas, who argued the risk of them being subjected to unconstitutionally cruel pain could not be evaluated without knowing the source of the sedative pentobarbital used by Texas for executions.
In his argument to the 3rd Court of Appeals, Deputy Solicitor General Adam Aston said it “defies logic to believe that this type of an investigation could be conducted while maintaining the confidentiality of the compounding pharmacy.”
The appeal from the state to fight disclosure “seeks to bend the law to shield their actions from the light of day,” Maurie Levin, one of Sells’ attorneys, said Friday. “We are hopeful that the Texas Supreme Court will not permit (the prison agency) to manipulate the system and the courts to evade the transparency that is crucial in carrying out this gravest of acts at the expense of our most basic democratic principles.”
The Supreme Court’s brief ruling said only that Covington’s order was halted “pending further order of this court,” did not specify a timetable and said the state’s petition to overturn the ruling remained before the justices.
Lauren Bean, a spokeswoman for the attorney general’s office, said the court either could deny the state’s petition or seek a response from the inmates’ attorneys before making a decision.
Levin said she would urge the court rule early in the week, considering Sells is set to die Thursday.
Before the Supreme Court ruling Friday, the inmates’ attorneys told the justices that “before delving into the nitty-gritty, let us all take a breath and admire the pure chutzpah of TDCJ, on the brink of executing these inmates by lethal injection from this new and untried supplier, and claiming that it is the ‘victim’ here and needing emergency relief.”
State prison officials have lost previous attempts to keep information about its execution drug supplier confidential, but Assistant Attorney General Nicole Bunker-Henderson argued before Covington on Thursday that circumstances now have changed and “there has been a significant, real concrete threat” to pharmacies that supply the drugs.
The prison agency lost its previous supplier last year after the compound pharmacy’s name was made public and it received threats.
Sells is set to die April 3, followed six days later by Hernandez-Llanas. Sells was condemned for slashing two girls’ throats in 1999 at a home near Del Rio; one girl died. He’s claims to have killed dozens more nationwide. Hernandez-Llanas was condemned for the 1997 beating death of a man who owned a Kerrville-area ranch where Hernandez worked.
Their executions have not been delayed, but once the source of the drugs is given to their attorneys a delay could be sought based on questions about the supplier. State attorneys have said the drugs have been tested and fall within acceptable ranges for potency.
The current supply of pentobarbital used for lethal injections in Texas expires April 1. Prison officials said last week they obtained a new supply but cited security reasons for declining to disclose the supplier’s name.
The office of Texas Attorney General Greg Abbott, obligated to represent the state prison agency in court, has previously concluded the information should be public. Bunker-Henderson told Covington the previous rulings were informal and shouldn’t be applied to other cases.