Texas Department of Criminal Justice v. Maurie Levin, Naomi Terr, and Hilary Sheard

ACCEPTED
03-15-00044-CV
5603446
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/9/2015 2:15:01 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00044-CV

FILED IN
In the Court of Appeals 3rd COURT OF APPEALS
AUSTIN, TEXAS
for the Third Judicial District
6/10/2015 11:09:01 AM
JEFFREY D. KYLE
Austin, Texas Clerk

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Appellant,
v.

MAURIE LEVIN, NAOMI TERR, AND HILARY SHEARD,
Appellees.

On Appeal from the
201st Judicial District Court of Travis County, Texas

APPELLANT’S BRIEF

KEN PAXTON Scott A. Keller
Attorney General of Texas Solicitor General

CHARLES E. ROY RICHARD B. FARRER
First Assistant Attorney Assistant Solicitor General
General State Bar No. 24055470

OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-1823
Fax: (512) 474-2697
richard.farrer@texasattorneygeneral.gov
COUNSEL FOR APPELLANT

ORAL ARGUMENT REQUESTED
 IDENTITY OF PARTIES AND COUNSEL

Appellant: The Texas Department of Criminal Justice

Lead Appellate Counsel
Richard B. Farrer
Assistant Solicitor General
State Bar No. 24055470
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-1823
Fax: (512) 474-2697
richard.farrer@texasattorneygeneral.gov

Additional Appellate and Trial
Counsel
Adam W. Aston
Joseph D. Hughes
Nichole Bunker-Henderson
David Alan Harris
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548

Appellees: Maurie Levin, Naomi Terr, and Hilary Sheard

Counsel for Appellees
Philip Durst
State Bar No. 06287850
pdurst@ddollaw .com
Manuel Quinto-Pozos
State Bar No. 24070459
mqp@ddollaw.com
DEATS, DURST, OWEN & LEVY P.L.L.C.
1204 San Antonio, Suite 203
Austin, Texas 78701
Telephone: (512) 474-6200

i
Facsimile: (512) 474-7896

Maurie Levin
State Bar No. 00789452
MAURIE LEVIN, ATTORNEY AT LAW
211 South Street, #346
Philadelphia, PA 19147
(512) 294-1540
(215) 733-9225 (fax)
maurielevin@gmail.com

ii
 TABLE OF CONTENTS

Identity Of Parties And Counsel................................................................ i

Index Of Authorities................................................................................ vii

Statement Of The Case ............................................................................. x

Statement Regarding Oral Argument ..................................................... xi

Issues Presented...................................................................................... xii

Introduction ............................................................................................... 1

Statement Of Facts ................................................................................... 3

A. Disclosure Of The Woodlands Compounding Pharmacy’s
Identity In 2013 Creates A Firestorm .................................... 3

B. A Pharmacy In Tulsa Receives A Disturbing Email
From An Individual Named Nick Humez............................... 5

C. TDCJ Requests A DPS Threat Assessment ........................... 7

D. Plaintiffs Submit A PIA Request And Later Challenge
An OAG Letter Ruling Finding The Identity Of The
Pharmacy Supplying Texas’s Pentobarbital Should Not
Be Disclosed. ......................................................................... 12

E. Plaintiffs Sue To Compel Disclosure And Obtain A TRO,
Which The Texas Supreme Court Stays. .............................. 14

F. TDCJ Obtains A Further Expert Opinion And Plaintiffs
Obtain An Expert Opinion Of Their Own. ........................... 15

G. The Legislature Removes Any Doubt That The Identity
Of Texas’s Supplier Of Execution Drugs Is Not An
Appropriate Subject For PIA Requests. ............................... 18

Summary Of Argument ........................................................................... 18

iii
Standard Of Review ................................................................................ 21

Argument ................................................................................................. 23

I. Texas Department Of Public Safety v. Cox Defines The
Contours Of The Physical-Safety Exception To Mandatory
Disclosure Under the PIA. ............................................................. 23

A. Cox Provides That The Physical-Safety Exception Can
Be Established Through Detailed Evidence Or Expert
Testimony. ............................................................................. 24

B. Threat Assessments From Law-Enforcement Agencies
Receive Deference. ................................................................ 25

C. Cox Shows How The Physical-Safety Exception Ought
To Apply. ............................................................................... 27

1. Cox Shows Courts Should Ordinarily Not Second-
Guess Law-Enforcement Threat Assessments. ........... 28

2. Cox Shows Information Should Be Withheld If It
Is Connected To The Threated Harm. ......................... 29

3. Cox Also Shows The Limits Of The Exception. ........... 30

II. The Court Should Reverse And Render Judgment Because
The Physical-Safety Exception Is Satisfied As A Matter Of
Law. ................................................................................................ 31

A. The Requested Disclosure Would Substantially
Threaten Physical Harm. ...................................................... 31

1. The Humez Email Is Detailed Evidence Of A
Substantial Threat Of Harm That Is Connected To
The Requested Information. ........................................ 32

2. The “Firestorm” Surrounding The Woodlands
Pharmacy Is Detailed Evidence Of A Substantial

iv
 Threat Of Harm That Is Connected To The
Requested Information. ............................................... 34

3. The Exploding-Head Blog Posting Is Detailed
Evidence Of A Substantial Threat Of Harm That
Is Connected To The Requested Information. ............. 35

4. Law Enforcement’s Reaction To The Woodlands
Pharmacy “Firestorm” Is Detailed Evidence Of A
Substantial Threat Of Harm That Is Connected To
The Requested Information. ........................................ 35

5. Brad Livingston’s Testimony Is Detailed Evidence
Of A Substantial Threat Of Harm That Is
Connected To The Requested Information. ................. 36

6. McCraw’s Threat Assessment Is Detailed
Evidence Of A Substantial Threat Of Harm That
Is Connected To The Requested Information And
Is Entitled To Deference. ............................................. 38

B. The Assessments Provided By TDCJ’s Experts
Independently Establish The Exception As A Matter Of
Law. ....................................................................................... 42

1. McCraw’s Opinion Demonstrates A Substantial
Threat Of Physical Harm............................................. 43

2. Cunningham’s Opinion Demonstrates A
Substantial Threat Of Physical Harm......................... 44

C. Plaintiffs’ Arguments Below Misunderstood The
Governing Standards. ........................................................... 47

1. Plaintiffs’ Arguments Below Assumed An
Incorrect Legal Standard. ............................................ 48

2. Plaintiffs’ Efforts To Create A Battle Of Experts
On An Issue With Immediate Public-Safety
Implications Is Misguided............................................ 50
v
 D. Plaintiffs’ Expert’s Testimony Should Not Have Been
Considered And, In Any Event, Could Not Undermine
TDCJ’s Experts’ Testimony. ................................................. 51

1. Parker Is Not Qualified................................................ 52

2. Parker’s Opinion Does Not Have A Sufficient Basis
And Is Unreliable. ........................................................ 53

III. In The Alternative And At The Very Least, The Court Should
Remand Because Plaintiffs Cannot Show Entitlement To
Judgment As A Matter Of Law. ..................................................... 57

Prayer ...................................................................................................... 58

Certificate of Service ............................................................................... 60

Certificate of Compliance ........................................................................ 61

vi
 INDEX OF AUTHORITIES

Cases

Al’s Formal Wear of Houston, Inc. v. Sun,
869 S.W.2d 442 (Tex. App.—Houston [1st Dist.]
1993, writ denied)...................................................................... 22-23

Anderson v. Snider,
808 S.W.2d 54 (Tex. 1991) (per curiam) .................................. 17, 44

Broders v. Heise,
924 S.W.2d 148 (Tex. 1996)............................................................ 52

Calhoun v. Killian,
888 S.W.2d 51 (Tex. App.—Tyler 1994, writ denied) .................... 22

City of Fort Worth v. Cornyn,
86 S.W.3d 320 (Tex. App.—Austin 2002, no pet.) ................... 22, 31

City of Garland v. Dallas Morning News,
22 S.W.3d 351 (Tex. 2000)........................................................ 22, 31

E.I. du Pont de Nemours & Co. v. Robinson,
923 S.W.2d 549 (Tex. 1995)...................................................... 52, 54

Merrell Dow Pharms., Inc. v. Havner,
953 S.W.2d 706 (Tex. 1997)............................................................ 53

Office of Pub. Util. Counsel v. Texas-New Mexico Power Co.,
344 S.W.3d 446 (Tex. App.—Austin 2011, pet. denied)................. 26

Sells v. Livingston,
561 F. App’x 342 (5th Cir. 2014) (per curiam) ........................... 2, 15

Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers L.P.,
343 S.W.3d 112 (Tex. 2011) .................................................. passim

Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex.,
253 S.W.3d 184 (Tex. 2007)...................................................... 21, 22

vii
Thomas v. Cornyn,
71 S.W.3d 473 (Tex. App.—Austin 2002, no pet.) ......................... 22

Transcon. Ins. Co. v. Crump,
330 S.W.3d 211 (Tex. 2010)............................................................ 52

Whirlpool Corp. v. Camacho,
298 S.W.3d 631 (Tex. 2009)............................................................ 54

Statutes

TEX. GOV’T CODE §552.021....................................................................... 23

TEX. GOV’T CODE §552.022............................................................ xi, 23, 24

TEX. GOV’T CODE §552.101.................................................................. xi, 23

TEX. GOV’T CODE §552.152....................................................................... 23

TEX. GOV’T CODE §552.301....................................................................... 13

TEX. GOV’T CODE §552.301(b) .................................................................. 25

TEX. GOV’T CODE §552.301(e) .................................................................. 26

TEX. GOV’T CODE §552.1081..................................................................... 18

Rules

Tex. R. Civ. P. 166a(c) ................................................................. 17, 44, 57

Tex. R. Evid. 401-03 ................................................................................ 51

Tex. R. Evid. 702 ......................................................................... 51, 52, 53

Tex. R. Evid. 703 ..................................................................................... 53

Other Authorities

7 WILLIAM DORSANEO III, TEXAS LITIGATION GUIDE
§101.07[3][a] (2014) ........................................................................ 57

viii
Act of May 20, 2015, 84th Leg., R.S., S.B. 1697 ..................................... 18

ALEX WILSON ALBRIGHT, TEXAS COURTS A SURVEY 461
(Imprimatur Press) (2010-2011) .................................................... 57

Crime in the United States 2012, at
http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-
u.s/2012/crime-in-the-u.s.-2012/violent-crime/ violent-
crime (last visited June 4, 2015) .................................................... 45

Tex. Att’y Gen. OR2014-09184 (2014) ................................................ x, 13

ix
 STATEMENT OF THE CASE

Nature of the Case: This is an appeal from a final order on
cross-motions for summary judgment
involving a challenge, under the Texas
Public Information Act (PIA), to a Texas
Attorney General Open Records ruling.
See Tex. Att’y Gen. OR2014-09184 (2014).
Plaintiffs seek disclosure of information
pertaining to the identity of the pharmacy
that supplied compounded pentobarbital
for use in Texas’s execution protocol. See
CR.5-68, 388-447, 730. In response to the
information request, the Texas
Department of Criminal Justice (TDCJ)
invoked the physical-safety exception to
disclosure. See Tex. Dep’t of Pub. Safety v.
Cox Tex. Newspapers L.P., 343 S.W.3d 112
(Tex. 2011).

Course of Proceedings: The parties filed cross-motions for
summary judgment. See CR.520-729
(TDCJ); CR.730-1907 (Plaintiffs).

Trial Court: The Honorable Darlene Byrne, 201st
District Court, Travis County, Texas.

Trial Court Disposition: The court granted Plaintiffs’ motion and
denied TDCJ’s motion. CR.2297. It
severed the remaining issues on attorney’s
fees and costs, thereby making its merits
determination final and appealable.
CR.2305-06.

x
 STATEMENT REGARDING ORAL ARGUMENT

The State requests oral argument. This appeal appears to present

the first opportunity for a Texas appellate court to substantively address

the physical-safety exception to mandatory disclosure of public

information since the Texas Supreme Court first recognized the exception

in Texas Department of Public Safety v. Cox, 343 S.W.3d 112 (Tex. 2011).

The exception embodies the balance between the right to physical safety

and the public’s interest in accessing public information, and the Court’s

decision will likely impact potentially dangerous and sensitive situations

beyond the current dispute about access to information on the

compounding pharmacy supplying Texas’s execution drugs.

The district court’s ruling implicitly credits Plaintiffs’ arguments

that misunderstand Cox and incorrectly frame the legal standard

governing the physical-safety exception. Those arguments dilute the

exception, unacceptably raise the evidentiary bar for satisfying it, and, if

given credence by this Court, threaten an unacceptable risk of physical

harm to the public resulting from the disclosure of sensitive information,

in both this case and future cases.

xi
 ISSUES PRESENTED

1. Whether the district court erred in denying TDCJ’s motion for
summary judgment and granting Plaintiffs’ cross-motion for
summary judgment because TDCJ demonstrated that the
requested information is subject to the physical-safety
exception to public disclosure as a matter of law.

2. Whether, in the alternative, Plaintiffs at most raised a
genuine issue of material fact with respect to the physical-
safety exception such that a trial on the merits is required.

xii
 INTRODUCTION

This appeal involves the physical-safety exception to the PIA’s

general requirement that public information be disclosed to requestors.

No appellate court has yet substantively reviewed a district court ruling

applying or rejecting the exception since the Supreme Court announced

it in Cox. This Court’s decision, therefore, will set the stage for the

exception’s application across a wide range of potential scenarios

involving public-safety concerns.

There is, however, a danger that this appeal could become

sidetracked due to the initial basis for Plaintiffs’ request for disclosure.

Plaintiffs initially invoked prohibitions on cruel and unusual punishment

when they requested disclosure of a wide range of information on Texas

executions, including Texas’s execution protocol, test results on the drug

used, and information identifying Texas’s provider of the drug. Texas

has disclosed all the requested information except the identity of the drug

provider. In related federal litigation, the Fifth Circuit found that the

federal constitutional right to be free from cruel and unusual punishment

is not implicated by a request for information identifying a State’s
provider of execution drugs in situations like the one presented here. See

Sells v. Livingston, 561 F. App’x 342 (5th Cir. 2014) (per curiam).

Nonetheless, the narrow issue in dispute—the applicability of the

physical-safety exception to a request for disclosure of public

information—remains an important one. The exception balances the

public’s important statutory right of access to public information with

extremely serious public-safety concerns. The balance is a delicate one,

and in announcing the exception Cox wisely placed a thumb on the public-

safety side of the scale. Accordingly, Cox requires deference to law-

enforcement assessments of the “probability of harm.” The touchstone of

the analysis under the exception, Cox advised, is a connection between

the threatened harm and the specific information requested.

The circumstances of this case satisfy all that Cox requires to

enforce the exception, and much more. Here, there is specific evidence of

a highly charged, potentially dangerous atmosphere surrounding the

requested information. TDCJ offered two expert assessments of an

unacceptably high “probability of harm,” as Cox describes it, should the

identity of the execution-drug supplier be disclosed. One of those

assessments comes from the Director of the Texas Department of Public

2
Safety, the other from a law-enforcement expert. And there is ample

evidence connecting the disclosure of the identity of the execution-drug

supplier with the threatened harm. Plaintiffs, for their part, offered an

expert opinion that challenges only the severity of the “probability of

harm,” and declines to address the connection between the requested

information and the potential harm identified by TDCJ’s experts. In

these circumstances, the district court should have deferred to TDCJ’s

experts’ assessments of an unacceptably high probability of harm, noted

the conclusive evidence of a direct connection between the threatened

harm and the information requested, and held that the physical-safety

exception is satisfied as a matter of law.

The Court should reverse the district court and clarify the

standards for the physical-safety exception as well as their application.

STATEMENT OF FACTS

A. Disclosure Of The Woodlands Compounding
Pharmacy’s Identity In 2013 Creates A Firestorm.

In the fall of 2013, the public learned that the Woodlands

Compounding Pharmacy was supplying Texas with pentobarbital for use

in executions. In the immediate wake of that public disclosure, the

pharmacy and its pharmacist received a significant amount of hate mail.

3
E.g., CR.581-88 (examples of emails); 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.778 (news article quoting a letter from the pharmacist referencing

“hate mail and messages” received following the disclosure of the

pharmacy’s identity). The pharmacist characterized the situation

resulting from the disclosure as a “firestorm.” CR.1859 (“Now that the

information has been made public, I find myself in the middle of a

firestorm.”).

An October 6, 2013 blog posting contributed to the “firestorm.”

CR.578-79. It includes a depiction of a man with an exploding head, over

which a heading reads, “The Pharmacist who approves the business of

killing, but only under the veil of secrecy.” CR.578. “Meet the

pharmacist,” the posting continues, “who sold the medical ethics [sic] and

shamed his profession for $2,800, Mr. Jasper Lovoi, RPh.” Id.

(emphasis in original).

The “firestorm” surrounding the release of the identity of the

Woodlands Compounding Pharmacy was a significant event for both law

4
enforcement and the pharmacy itself. The TDCJ Office of the Inspector

General and the Montgomery County Sheriff’s Office sent officers to

observe and provide security at an October 9, 2013 protest of the

pharmacy. CR.564; CR.729. And the pharmacy sent a letter to the TDCJ

“demand[ing] that TDCJ immediately return the vials of compounded

pentobarbital” already provided by the pharmacy. CR.1858-59.

B. A Pharmacy In Tulsa Receives A Disturbing Email
From An Individual Named Nick Humez.

Shortly thereafter, the environment surrounding compounding

pharmacies supplying execution drugs took a further turn for the worse.

On January 29, 2014, an individual named Nick Humez sent an email to

the Apothecary Shop in Tulsa, Oklahoma, upon learning that the

pharmacy was a possible supplier of Missouri’s execution drugs. CR.590.

The email queries whether providing execution drugs is “prudent” and

recommends “were I you [the pharmacy] I’d at least want to beef up my

security now that you’ve been put in the spotlight.” Id. “As the folks at

the [Murrah] federal building can tell you,” the email explains, “it only

takes one fanatic with a truckload of fertilizer to make a real dent in

business as usual.” Id. “In your place,” the email continues, “I’d either

swear to the nation that my company didn’t make execution drugs of ANY

5
sort, and then make dang sure that’s true, or else openly accept the

burden of putting my employees and myself at unacceptable (and possibly

uninsurable) risk.” Id.

Needless to say, the email got the authorities’ attention. Federal

agents questioned Humez about it and his underlying intentions in

connection to the Apothecary Shop. See CR.593-95.

Humez later discussed the reasoning motivating his email. He

explained—to Plaintiff Levin, no less—that in drafting and sending the

email he was attempting to impress upon the Apothecary Shop what he

considered a very obvious danger of physical harm that the pharmacy

employees, and others, face after the pharmacy was identified as a

possible supplier of execution drugs:

I wanted to make clear that now that it was generally known
that the Apothecary Shoppe [sic] was in fact supplying such
toxins, even if they did not see it as simply wrong, they needed
to be aware that many others did, and that some of them might
be dangerous to them, their employees, and the surrounding
bystanders if even one fanatic . . . with a rudimentary
knowledge of improvised explosives chose to go on the attack.
I felt, and thought I had made it clear, that they would be
reckless not to consider this possibility and to take appropriate
action at the very least to protect against it, as I would surely
do were I in their place.

6
CR.593 (emphases added). Humez further clarified to Plaintiff Levin

that his “intention . . . [was] to warn some apparently ignorant people of

the heightened risk they were taking on now that the nature of their

activities was known nationwide.” CR.593-94 (emphasis added). Finally,

and in case there was any doubt regarding his views, Humez also noted:

I do know that there are extremists in the right-to-life
movement who would regard destroying a death drug factory
as equally justified with blowing up an abortion clinic or
. . . bombing the tracks that led to Auschwitz.

CR.595 (emphasis added).

C. TDCJ Requests A DPS Threat Assessment.

TDCJ learned about Humez’s email to the Apothecary Shop in

February 2014. See CR.699-700, 704. At the time, TDCJ was in the

process of finding a new provider for pentobarbital to use in Texas

executions. See CR.699-700, 704. Given the “firestorm” surrounding the

release of the Woodlands Compounding Pharmacy’s identity, and given

Humez’s recent email to the pharmacy in Oklahoma, TDCJ’s Executive

Director, Brad Livingston, grew concerned about public safety in

connection with the possible future disclosure of the identity of the

eventual new supplier of Texas’s execution drugs. See CR.639-40;

CR.701-06.

7
 Livingston’s concerns were further heightened by the fact that the

director of Colorado’s Department of Corrections had been assassinated

the previous March, and that Livingston had personally received a

number of death threats both prior to and after that horrific event.

CR.704-05. In sum, Livingston felt that “the world I live in” and the

“security risks that are inherent in . . . the criminal justice world [ ] had

escalated in general and specifically over the last number of months.”

CR.704.

Anticipating the inevitable PIA requests for information about

Texas’s eventual new execution-drug provider, and consistent with his

appraisal that the criminal-justice environment contained “security

risks . . . that had escalated in” recent times, id., Livingston requested a

threat assessment from the Director of the Texas Department of Public

Safety (DPS), Col. Steven McCraw. See CR.639-40; CR.701-06.

Livingston knew that an assessment would be needed quickly, given that

PIA requests would likely be submitted as soon as TDCJ obtained the

pentobarbital. CR.639-40; CR.701-06.

McCraw provided the requested threat assessment on March 7,

2014. His assessment concluded, in no uncertain terms, that revealing

8
the identity of the compounding pharmacy posed a substantial risk of

physical harm:

Pharmacies by design are easily accessible to the public and
present a soft target [for] violent attacks. It is our assessment
that publicly linking a pharmacy or other drug supplier to the
production of controlled substances to be used in executions
presents a substantial threat of physical harm to the
pharmacy, other drug supplier and its personnel and should
be avoided to the greatest extent possible.

CR.556.

McCraw has a wealth of expertise and experience in providing

threat assessments. He began his law-enforcement career in 1977 and

served for 21 years in the Federal Bureau of Investigation. CR.630. To

this day, McCraw has retained a high level security clearance issued by

the federal government, and he routinely receives classified and

unclassified material and briefings on current and future criminal and

terrorism threats. CR.631. Further, McCraw serves as a member of the

International Association of Chiefs of Police Committee on Terrorism and

the Department of Justice Bureau of Justice Assistance Law

Enforcement Forecasting Group, and he benefits from access to threat

information and national experts who serve on those committees. Id.

9
 DPS, where McCraw serves as Director, routinely conducts threat

assessments on people and places, and it produces state-wide public

safety and homeland-security threat assessments in several areas. Id.

DPS threat assessments cover a variety of public-safety issues, including

terrorism, security, and other types of threats. CR.634.

Immediately prior to joining DPS, McCraw served as Director of

Homeland Security in Texas, where he established a state-wide,

multidisciplinary process to assess homeland-security and public-safety

threats and vulnerabilities on terrorism, crime, pandemic, disease,

natural disasters and industrial accidents. CR.631.

McCraw had high-level experience with law enforcement and

threat assessments while serving with the FBI, in addition to his relevant

experience while with Homeland Security in Texas and DPS. For

example, at the time he retired from the FBI, McCraw was the Assistant

Director of the Inspection Division within the FBI and reported directly

to the FBI Director. Id. Earlier in his FBI career, McCraw established

an organizational threat process and oversaw threat assessments of

major drug-trafficking organizations. CR.632.

10
 McCraw’s FBI career also included a stint as the first Unit Chief of

the Latin America and Caribbean Organized Crime/Drug Unit, where he

oversaw a combined DEA and FBI Threat Assessment Team. Id. He also

served in Arizona as the FBI’s first Assistant Special Agent in Charge of

the Tucson Resident Agency in the Phoenix Field Office, where his

responsibilities included overseeing developing a comprehensive threat

assessment for Southern Arizona. CR.633. In addition, he spent time as

Deputy Assistant Director in the Investigative Support Division, a

position in which he conducted threat assessments on the new FBI

Director and the new Attorney General. Id.

Following the September 11 terrorist attacks, McCraw was selected

by the President to serve as the Director of the Foreign Terrorism

Tracking Task Force where he reported directly to Deputy Attorney

General Larry Thompson at the Department of Justice and oversaw two

threat assessments requested by the U.S. Attorney General. Id.

Following another promotion within the FBI, McCraw served as

Assistant Director, a position in which he oversaw several threat

assessments across the full spectrum of FBI responsibilities. CR.634.

11
 D. Plaintiffs Submit A PIA Request And Later Challenge
An OAG Letter Ruling Finding The Identity Of The
Pharmacy Supplying Texas’s Pentobarbital Should Not
Be Disclosed.

Plaintiffs Maurie Levin, Hilary Sheard, and Naomi Terr serve as

counsel for capital defendants. On March 18, 2014, citing the need to

safeguard prisoners’ rights under the Eighth Amendment, Article I §13

of the Texas Constitution, and Article 43.24 of the Texas Code of Criminal

Procedure, Plaintiffs requested under the PIA the following information

relating to executions performed in Texas:

• “the execution protocol by which [Texas] intend[s] to carry out
. . . scheduled execution[s],”

• “the drug or drugs, including back-up, [Texas] intend[s] to use,”

• “the source of those drugs,”

• “the date [the drugs were] ordered and received, and”

• “any testing conducted to ensure potency, purity, and integrity.”

CR.20-21; see CR.22.

Although TDCJ released some of the requested information, it

claimed that some of it may be withheld from disclosure under the PIA’s

provisions. On March 25, 2014, TDCJ requested an open records decision

from the Office of the Texas Attorney General on whether the requested

12
information may be withheld from disclosure under the physical-safety

and other disclosure exceptions. See TEX. GOV’T CODE §552.301. In

support of its request to withhold the information, TDCJ provided the

McCraw threat assessment and supporting documentation (including

emails to the Woodlands Compounding Pharmacy, the “exploding head”

blog posting, and the Humez email).

On May 29, 2014, the Office of the Attorney General issued a letter

ruling finding that information identifying the pharmacy (and

pharmacist) is subject to the physical-safety exception and, therefore,

should not be disclosed. See CR.550-54; Tex. Att’y Gen. OR2014-09184

(2014).

Ultimately, TDCJ released to the requestors all the requested

information, including test results, see, e.g., CR.408, except information

identifying the pharmacist and licensed compounding pharmacy that

most recently supplied pentobarbital to Texas for use in executions. See

CR.524. TDCJ also divulged that the unnamed pharmacy is a licensed

compounding pharmacy open to the public and located in an urban area

of a Texas city. CR.561.

13
 E. Plaintiffs Sue To Compel Disclosure And Obtain A
TRO, Which The Texas Supreme Court Stays.

Meanwhile, on March 26, 2014—the day after TDCJ requested an

open-records ruling—Plaintiffs filed suit in Travis County District Court

seeking, among other things, a TRO directing TDCJ to immediately

produce to Plaintiffs the information identifying the pharmacy. CR.5-68.

Plaintiffs also sought a temporary injunction and writ of mandamus

under TEX. GOV’T CODE §552.321 to compel disclosure of the information.

On March 27, 2014, the district court found that “if the disclosure

of this information is not ordered immediately, [Plaintiffs’ clients on

death row] will suffer irreparable injury because [their] constitutional

right to be free from cruel and unusual punishment cannot be protected

in the absence of the requested information.” CR.266. Accordingly, the

court granted a TRO requiring disclosure to Plaintiffs and their counsel,

and it ordered a hearing on the requested temporary injunction for April

10, 2014. CR.266-68.

TDCJ promptly filed a petition for writ of mandamus and a stay

motion in the Texas Supreme Court. The Court stayed the district court’s

TRO later that same day. CR.270. The Court ultimately denied TDCJ’s

mandamus petition as moot because the TRO expired while the stay was

14
in effect, and the temporary-injunction hearing was likewise cancelled by

the stay order. CR.305.

On April 2, two inmates represented by Plaintiffs sought and

obtained a preliminary injunction in federal district court, which stayed

the inmates’ executions and ordered discovery (under a protective order)

that would reveal the identity of the compounding pharmacy. The Fifth

Circuit promptly vacated the stays and disclosure orders for both

inmates, and in doing so rejected arguments that the right to be free from

cruel and unusual punishment requires disclosure of the identity of the

pharmacy providing the pentobarbital. See Sells, 561 F. App’x at 344-45.

F. TDCJ Obtains A Further Expert Opinion And Plaintiffs
Obtain An Expert Opinion Of Their Own.

In connection with the underlying state court mandamus litigation

brought under TEX. GOV’T CODE §552.321, TDCJ retained the services of

a second law-enforcement expert, J. Lawrence Cunningham, to conduct

a comprehensive threat assessment. Like DPS Director McCraw,

Cunningham concluded that the disclosure of the pharmacy’s identity

would substantially threaten physical harm:

Based on the totality of my diverse threat assessment training
and experience in the public and private sectors, my review of
the documents listed above, and open source publications, I

15
 conclude that there is a significant and substantial threat of
physical harm to the pharmacy/compounding pharmacy and
pharmacist, and others in the vicinity of the
pharmacy/compounding pharmacy if the identity of the
pharmacy/compounding pharmacy or pharmacist is publicly
disclosed.

CR.625, 562-76.

As with Col. McCraw, Cunningham’s qualifications to serve as an

expert are extensive. See CR.605-28; see also CR.597-603 (Cunningham

curriculum vitae). Cunningham had a 20-year career as a secret service

agent, during which he supervised a major field office, conducted lead

security advances, and performed risk assessments for world leaders

attending major events. CR.600. More recently as a consultant, he has

evaluated, developed, and implemented integrated response plans,

security training programs, and security policies. Id.

Cunningham currently works as a consultant conducting risk

assessments and security training for clients including the Department

of Homeland Security, the Defense Threat Reduction Agency, a number

of foreign and domestic corporations, and even foreign governments. Id.

He also currently holds several Department of Homeland Security

teaching certifications and serves as an adjunct faculty member of the

National Domestic Preparedness Consortium, where he develops and

16
evaluates courses and seminars on preventing and countering terrorism

and other threats of violence. CR.600-01.

Prior to his current position, Cunningham served as an

International Security Expert for the U.S. State Department and as a

Security Supervisor in charge of dignitary security for the Stanford

University World Cup Soccer venue. CR.601.

Cunningham’s 20-year career in the Secret Service is striking. He

served in the Presidential Protective Division at the White House and

taught courses and revised curricula dealing with training all levels of

Secret Service personnel. CR.601-02. He earned seven Performance

Awards and the Albert Gallatin Award for 20 years of meritorious

government service. CR.602.

TDCJ also provided the opinion of Brad Livingston, which they

offered as the opinion of an interested expert under Texas Rule of Civil

Procedure 166a(c) and cases like Anderson v. Snider, 808 S.W.2d 54, 55

(Tex. 1991) (per curiam).

Plaintiffs submitted an expert opinion of their own, from Thomas

Parker. Parker did not offer his own threat assessment but instead only

discussed the opinions of TDCJ’s experts, ultimately concluding that no

17
threat assessment could be made under the circumstances. See CR.804-

05. Plaintiffs also submitted affidavits from Plaintiff Levin and Manuel

Quinto-Pozos, an attorney representing Plaintiffs in this matter.

The parties filed cross-motions for summary judgment. The district

court granted Plaintiffs’ motion and denied TDCJ’s motion. CR.2297.

G. The Legislature Removes Any Doubt That The Identity
Of Texas’s Supplier Of Execution Drugs Is Not An
Appropriate Subject For PIA Requests.

On May 28, 2015, Governor Abbott signed into law SB 1697, which

goes into effect September 1, 2015, and applies prospectively to PIA

requests made after that date (and so does not control this case). It

provides, in pertinent part, that “[i]nformation is excepted from the

requirements of Section 552.021” of the PIA “if it contains identifying

information . . . , including” information that identifies:

any person or entity that manufactures, transports, tests,
procures, compounds, prescribes, dispenses, or provides a
substance or supplies used in an execution.

Act of May 20, 2015, 84th Leg., R.S., S.B. 1697, §552.1081 (to be codified

at TEX. GOV’T CODE §552.1081).

SUMMARY OF ARGUMENT

Cox defines the contours of the physical-safety exception and points

the way to the correct disposition of this appeal. Cox provides that the

18
physical-safety exception can be established through detailed evidence or

expert testimony. Cox further provides that an assessment from DPS or

other law-enforcement agencies or experts on the probability of harm is

entitled to deference from the courts. The key to withholding information

under the exception is a connection between the requested information

and the harm about which law enforcement has expressed concern.

Where evidence or expert testimony shows such a connection, the

information should qualify for the exception. It is only where a

connection is lacking that a more robust evidentiary showing is required

to justify withholding the information.

Here, TDCJ demonstrated its entitlement to judgment, through

detailed evidence and expert testimony establishing the exception as a

matter of law. The detailed evidence that shows a substantial threat of

harm that is connected to the release of the requested information

includes: (1) the email from Nick Humez referencing the bombing of the

Murrah federal building in Oklahoma and noting the existence of

extremists willing to commit violent acts in connection with their

opposition to the death penalty; (2) the “firestorm” of hate mail and vitriol

surrounding the disclosure of the Woodlands Pharmacy as a supplier of

19
execution drugs; (3) the exploding-head blog identifying the Woodlands

Compounding Pharmacy’s pharmacist as a supplier of execution drugs

and superimposing that information with a depiction of a man’s head

exploding; (4) the reasonable decision by law enforcement to monitor and

police a protest at the Woodlands Pharmacy; (5) Brad Livingston’s

testimony regarding his public-safety concerns in connection with the

possible disclosure of the identity of the Texas’s supplier of execution

drugs; and (6) DPS Director McCraw’s assessment that there is a

substantial likelihood of physical harm should the identity of the supplier

be disclosed.

The detailed evidence is independently confirmed by the expert

opinions of both McCraw and Cunningham, which are entitled to

receive—and should receive—deference.

Plaintiffs’ arguments below challenging McCraw and Cunningham

miss the mark. To start, Plaintiffs continually presented the district

court with improper formulations of the governing standard. Further,

Plaintiffs’ efforts to turn application of the exception into a “battle of the

experts” are misguided. Cox contemplates deference to DPS and other

law-enforcement agency threat assessments, not a war of experts in every

20
case, with the public’s safety hanging in the balance. Plaintiffs’ expert

Parker’s testimony, in any event, does nothing to undermine the detailed

evidence demonstrating TDCJ’s establishment of the exception as a

matter of law, or to undermine TDCJ’s expert’s opinions. Parker is not

qualified, and his opinions lack a sufficient basis and are unreliable.

The foregoing establishes TDCJ’s entitlement to judgment as a

matter of law, and the Court should reverse the district court and render

judgment for TDJC.

Finally, because Plaintiffs at most could only raise a genuine issue

of material fact regarding the physical-safety exception, the case (at

worst) should be remanded for trial on the merits.

STANDARD OF REVIEW

Although the denial of a summary judgment motion typically is not

reviewable, review is appropriate here because the district court ruled on

cross-motions for summary judgment, and because it severed its

summary-judgment order. Tex. Mun. Power Agency v. Pub. Util. Comm’n

of Tex., 253 S.W.3d 184, 192 (Tex. 2007). Because TDCJ raised an

exception to mandatory disclosure under the PIA as the basis for its

summary judgment request, TDCJ bore the burden in the district court

21
of demonstrating that the exception is satisfied. See, e.g., Thomas v.

Cornyn, 71 S.W.3d 473, 488 (Tex. App.—Austin 2002, no pet.) (“[W]e hold

that a governing body should bear the burden of proving in a judicial

proceeding that an exception to disclosure applies.”). Likewise, Plaintiffs

bore the burden to show their entitlement to judgment; cross-motions for

summary judgment require that “each party bears the burden of

establishing that it is entitled to judgment as a matter of law.” City of

Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000); City of

Fort Worth v. Cornyn, 86 S.W.3d 320, 322 (Tex. App.—Austin 2002, no

pet.).

This Court reviews the district court’s ruling on summary judgment

cross-motions de novo by examining the evidence, determining all issues

presented, and rendering the judgment the district court should have

rendered. Tex. Mun. Power Agency, 253 S.W.3d at 192. If neither party

has satisfied its burden to show it is entitled to judgment as a matter of

law, and disputed issues of fact therefore remain, a reviewing court

should remand the case for trial on the merits. E.g., Calhoun v. Killian,

888 S.W.2d 51, 54 (Tex. App.—Tyler 1994, writ denied); Al’s Formal Wear

22
of Houston, Inc. v. Sun, 869 S.W.2d 442, 444 (Tex. App.—Houston [1st

Dist.] 1993, writ denied).

ARGUMENT

I. TEXAS DEPARTMENT OF PUBLIC SAFETY V. COX DEFINES THE
CONTOURS OF THE PHYSICAL-SAFETY EXCEPTION TO MANDATORY
DISCLOSURE UNDER THE PIA.

Under the PIA, “public information is available to the public” upon

request, TEX. GOV’T CODE §552.021, “subject to certain exceptions.” Cox,

343 S.W.3d at 114. Some exceptions are specified in the PIA’s text;1

others arise from the common law or other law and are incorporated into

the PIA’s scheme by other PIA provisions. See, e.g., TEX. GOV’T CODE

§§552.101 & 552.022. “Th[e] exceptions embrace the understanding that

the public’s right to know is tempered by the individual and other

interests at stake in disclosing that information.”2 Cox, 343 S.W.3d at

1 There is a statutory public-safety exception—not at issue here—that involves
information “that relates to an employee or officer of [a] governmental body.” TEX.
GOV’T CODE §552.152.
2 The PIA also involves another issue that features in, and often complicates,
the PIA case law but that is not particularly relevant for present purposes. In 1999,
amendments to the PIA excluded “certain categories of public information from the
[PIA’s] exceptions” to disclosure. Id. Those categories of information—often referred
to as core-public or super-public information—are listed in §552.022. Under the 1999
amendments, information falling into a §552.022 category was protected from
disclosure only if it was “expressly confidential under other law.” Id. (internal
quotation marks omitted). “‘Other law,’” for the 1999 amendment’s purposes,

23
114. One such exception is the physical-safety exception, which derives

from the common law, was announced in Cox, and is at issue here.

A. Cox Provides That The Physical-Safety Exception Can
Be Established Through Detailed Evidence Or Expert
Testimony.

Cox announced as a matter of first impression that information

requested for disclosure under the PIA may be withheld, under a

common-law physical-safety exception, if disclosure “would substantially

threaten physical harm.” 343 S.W.3d at 119.

Cox explains that the exception requires courts to “closely examine

each of the disputed documents” subject to a disclosure request; the

“dividing line between disclosure and restraint” as to each document is

“determined by proof.” Id. at 118-19. The requisite proof that disclosure

“include[d] other statutes [apart from the PIA], judicial decisions, and rules
promulgated by the judiciary.” Id.

The core-public designation is tangential to the issues presented here because
under Cox, §552.022’s “other law” includes the common law right to be free from
physical harm. Id. at 118. Cox’s physical-safety exception to mandatory disclosure,
in other words, applies to core-public information.

The Legislature later amended §552.022 for disclosure requests coming after
September 1, 2011, to provide that information falling into a §552.022 category may
be protected from disclosure if it is confidential “under this chapter or other law.”
TEX. GOV’T CODE §552.022.

24
would substantially threaten physical harm may come through either

“detailed evidence or expert testimony.” Id. at 119 (emphasis added).

B. Threat Assessments From Law-Enforcement Agencies
Receive Deference.

Cox recognizes the utility of a law-enforcement expert’s assessment

“about the probability of harm” surrounding a proposed release of

information. Id. If the assessment comes from “DPS officers” or “other

law enforcement experts,” “a certain amount of deference must be

afforded” to it. Id. (emphasis added). In Cox, for example, the Court

required deference to an assessment of risk from DPS even though DPS

was a party to the litigation. Id.

The PIA’s statutory scheme provides governmental bodies, like the

TDCJ in this case, only a short amount of time to determine whether the

requested information qualifies for an exception to disclosure. This

means that a law-enforcement assessment “about the probability of

harm” may in some cases be somewhat abbreviated. Indeed, a

governmental body subject to a PIA request by statute has only 10 days

either to produce requested information or seek a ruling from the Open

Records Division of the Office of the Attorney General on whether the

information may be withheld. See TEX. GOV’T CODE §552.301(b). If a

25
ruling is sought, the governmental body has only 15 days from the initial

information request to submit written comments to the Office of the

Attorney General stating why the information qualifies for exception

from disclosure. Id. §552.301(e).

This accelerated timeline and Cox’s required deference to a DPS or

law-enforcement-expert assessment means that assessments of public-

safety risk must be taken seriously and ordinarily should receive

deference from the courts, even when they are provided in relatively

short order. After all, law enforcement officials are the experts on public

safety issues, including ones that come to light quickly. It makes sense

that their assessments of public-safety threats should be respected,

absent a significant showing to the contrary. Cf. Office of Pub. Util.

Counsel v. Texas-New Mexico Power Co., 344 S.W.3d 446, 450 (Tex.

App.—Austin 2011, pet. denied) (agency determination in an area of

agency expertise is reviewed for substantial evidence, which requires

presumption that it is supported by substantial evidence and requires

complaining party to overcome that presumption).

Recognizing that deference is owed to law-enforcement

assessments “about the probability of harm” is not tantamount to

26
providing governmental bodies carte blanche to withhold every shred of

information possibly connected to a public-safety situation. Cox explains

that “vague assertions of risk” alone “will not carry the day” under the

exception. 343 S.W.3d at 119. Again, the touchstone is proof, which is to

say proof connecting specific requested information to the threatened

harm. See id.

C. Cox Shows How The Physical-Safety Exception Ought
To Apply.

Cox demonstrates how the principles governing the physical-safety

exception ought to apply. Cox involved requests for disclosure from

newspapers seeking information in travel vouchers from the governor’s

security detail. Id. The DPS, which is responsible for the governor’s

protective detail, offered to release only aggregate expense information

derived from the vouchers but warned that releasing the vouchers

themselves would “necessarily reveal the number of officers who traveled

with the governor and his family, data that would be valuable

information for someone who intended to cause the governor harm.” Id.

(internal quotation marks and brackets omitted).

Although the Court remanded the case for application of the newly

announced standard governing the exception, it nonetheless instructed

27
that information revealing the number, “specific location,” and “identity”

of the guards protecting the governor should satisfy the exception. Id. at

118-19. This was so, the Court explained, because the information could

give a potential and as-yet unidentified person who might be “intent on

harming” the governor “the means to accomplish that goal.” Id. at 118-

19. Indeed, with respect to the “number of guards protecting the

governor,” the Court indicated that the exception in fact was already

satisfied. Id. at 119 (“To the extent DPS can show . . . that revelation

substantially threatens harm—as it has with respect to the number of

guards protecting the governor—then the information at issue may be

withheld.” (emphasis added)).

Three aspects of the Cox decision bear emphasis.

1. Cox Shows Courts Should Ordinarily Not Second-
Guess Law-Enforcement Threat Assessments.

Cox demonstrates the deference owed to a law-enforcement

assessment of the probability of harm. Although DPS was a party in that

case, the Court nonetheless deferred to DPS’s threat assessment. In

doing so, the Court: (1) did not demand a full-blown expert opinion from

DPS; (2) did not contemplate a “battle of experts” in every case to resolve

whether there was a substantial probability that releasing the

28
information might lead to physical harm; (3) did not require evidence of

an actual specific, identifiable violent “threat”; (4) did not require

evidence that such a threat was likely or that violence was likely, or

instruct the district court on remand to demand any such evidence; and

(5) did not require evidence of a past incident of violence by a particular

person or group. See id.

In short, Cox teaches that when DPS or other law-enforcement

agencies or officials conclude that there is a substantial probability of

physical harm associated with releasing requested information, courts

should defer to that overall assessment.

2. Cox Shows Information Should Be Withheld If It
Is Connected To The Threated Harm.

Cox teaches that the focus should be on the connection between

requested information and the threatened harm. Thus, where the record

connected requested information to the DPS’s legitimate concern about

the governor’s safety, the Court did not hesitate to signal that the

information should qualify under the exception. For example,

information revealing “specific details about the number of officers

assigned to protect the governor,” “their general location in relation to

him,” “their dates of travel,” “the number of officers . . . necessary for the

29
governor’s security,” “the specific location . . . where the officers resided,”

“and the identity of each officer” “may be withheld” because that

information could assist a person intent on harming the governor or his

family. Id. at 118-19.

3. Cox Also Shows The Limits Of The Exception.

Cox also indicates that an assessment of the “probability of harm”

does not automatically shield all requested information from disclosure.

Rather, each piece of information needs evidence connecting the

information to the threatened harm. As the Court explained,

the dividing line between disclosure and restraint must be
determined by proof. To the extent DPS can show, with
detailed evidence or expert testimony, that revelation
substantially threatens harm—as it has with respect to the
number of guards protecting the governor—then the
information at issue may be withheld.

Id. at 119. Under this reasoning, efforts to withhold “all but the ultimate

dollar figure for [the governor’s] trips abroad” required more evidentiary

support connecting the specific information to the governor’s safety. Id.

Thus, for all information about trips abroad to qualify for the exception,

the record would need to explain how disclosing each item of information

could contribute to the probability of harm to the governor. See id.

30
II. THE COURT SHOULD REVERSE AND RENDER JUDGMENT BECAUSE
THE PHYSICAL-SAFETY EXCEPTION IS SATISFIED AS A MATTER OF
LAW.

Under the teachings of Cox, the record conclusively establishes that

the identity of the compounding pharmacy and its pharmacist qualify for

the physical-safety exception as a matter of law. See City of Garland, 22

S.W.3d at 356-57; City of Fort Worth, 86 S.W.3d at 322. Through both

detailed evidence and expert testimony—although either alone would

suffice—TDCJ conclusively satisfied the physical-safety exception as a

matter of law. The Court should reverse and render judgement for TDCJ.

A. The Requested Disclosure Would Substantially
Threaten Physical Harm.

TDCJ satisfied the physical-safety exception, as a matter of law,

with respect to the identity of the compounding pharmacy. It is

important to keep in mind that, unlike the situation in Cox, TDCJ does

not claim that all the requested information is subject to the physical-

safety exception. Rather, TDCJ has released all of the requested

information with only one exception—information that would identify the

compounding pharmacy and its pharmacist. With regard to that specific

information, detailed evidence, including a DPS threat assessment

entitled to deference, reveals that disclosure would substantially

31
threaten physical harm. Moreover, both the detailed evidence and expert

testimony illustrate a clear connection between the requested

information and the threatened harm.

1. The Humez Email Is Detailed Evidence Of A
Substantial Threat Of Harm That Is Connected To
The Requested Information.

In the weeks prior to the PIA request in this case, the disclosure of

the identity of a provider of execution drugs led to troubling and

threatening developments in Oklahoma. This undisputed evidence alone

conclusively establishes a substantial threat of physical harm and readily

connects the specific information requested for disclosure to the

threatened harm. See Cox, 343 S.W.3d at 119.

The undisputed content of Humez’s email, and the extent to which

federal and state law enforcement took the email seriously, exceeds what

is required to demonstrate a substantial threat of physical harm, as a

matter of law. In the email, Humez questioned the “pruden[ce]” of

providing the drugs and recommended “beef[ing] up” security “now that

you’ve been put in the spotlight.” CR.590. “[I]t only takes one fanatic

with a truckload of fertilizer,” warned Humez. Id. Even an individual

like Humez recognized that providing execution drugs publicly carries a

32
“burden of putting [one’s] employees and [oneself] at unacceptable (and

possibly uninsurable) risk.” Id.; see also CR.595 (likening bombing a

provider of execution drugs to “blowing up an abortion clinic” or “bombing

the tracks that led to Auschwitz.”). This risk, Humez noted, is “reckless,”

given the fervor surrounding executions. CR.593. Even the FBI

questioned Humez about his email, see CR.593-94, and TDCJ Executive

Director Livingston considered the email an actual threat, setting aside

its propensity to outline and describe an unacceptably threatening

environment. See CR.558. As Cox teaches, an actual explicit threat of

violence is not required to find a substantial threat of physical harm. 343

S.W.3d at 119.

The direct connection between the request for information

concerning the identity of the pharmacy and the threatened harm is

readily established by Humez’s email. It was virtually on the heels of the

disclosure of the Apothecary Shop’s identity that Humez sent his missive.

Humez himself confirmed the obvious nexus between the identity of the

pharmacy and a threat of physical harm when he recognized that “now

that it [is] generally known that the Apothecary Shoppe was in fact

supplying” the drugs, some people might object and “some of them [the

33
objectors] might be dangerous to them [the pharmacy], their employees,

and the surrounding bystanders.” CR.593 (emphasis added).

2. The “Firestorm” Surrounding The Woodlands
Pharmacy Is Detailed Evidence Of A Substantial
Threat Of Harm That Is Connected To The
Requested Information.

Additionally, the “firestorm” of hate mail and threats surrounding

the disclosure of the identity of the Woodlands Compounding Pharmacy

constitutes detailed evidence demonstrating a substantial threat of

physical harm that is directly connected to the identity of the pharmacy

providing execution drugs. See CR.1859 (“Now that the information has

been made public, I find myself in the middle of a firestorm.”); see also

CR.581-88; CR.778.

Again, as with the Humez email, whether these emails themselves

each constitute actual explicit threats of violence is not the only

consideration. The emails’ existence and vitriolic character are on-point

evidence of a dangerous environment directly connected to the requested

information.

34
 3. The Exploding-Head Blog Posting Is Detailed
Evidence Of A Substantial Threat Of Harm That
Is Connected To The Requested Information.

The October 6, 2013 blog posting further proves a substantial threat

of physical harm connected to the identity of the pharmacy. CR.578-79.

Almost immediately after the identity of the Woodlands Pharmacy was

revealed, the posting appeared, including its picture of the pharmacist’s

head exploding and caption entitled, “Meet the pharmacist who sold the

medical ethics [sic] and shamed his profession for $2,800, Mr. Jasper

Lovoi, RPh.” CR.578 (emphasis in original). Again, as with the emails,

whether the blog posting itself is an actual explicit threat of violence is

not the only, or even the controlling, consideration.

4. Law Enforcement’s Reaction To The Woodlands
Pharmacy “Firestorm” Is Detailed Evidence Of A
Substantial Threat Of Harm That Is Connected To
The Requested Information.

Next comes law enforcement’s reaction to the Woodlands Pharmacy

situation, and it too is detailed evidence of a substantial threat of physical

harm connected to the pharmacy’s identity. The “firestorm” surrounding

the disclosure of the Woodlands Pharmacy’s identity posed a sufficiently

serious threat of harm to prompt the TDCJ Office of the Inspector

General and the Montgomery County Sheriff’s office to dispatch officers

35
to observe and provide security at a protest of the pharmacy. See CR.564;

CR.729. The connection between the identity of the pharmacy and a

potential security risk warranting a law-enforcement presence is again

obvious: the protest was held at the pharmacy because its identity was

disclosed to the public.

5. Brad Livingston’s Testimony Is Detailed Evidence
Of A Substantial Threat Of Harm That Is
Connected To The Requested Information.

The determination of TDCJ Executive Director Brad Livingston—

before any PIA request for disclosure was ever submitted—that he

needed to take the necessary steps to ensure the identity of the pharmacy

remained confidential is further proof of a substantial threat of harm.

Livingston based his determination on “threats of harm” that have

“certainly escalated in degree and type” in recent times, not vague

assertions of risk. CR.559. Specifically, he cited the “graphic example on

the Internet, dated October 6, 2013, [which] shows a graphic of the

screaming and violently exploding head of the [Woodland compounding

Pharmacy] pharmacists who [previously] supplied TDCJ with lethal

injection chemicals.” Id. He also referenced the Humez email, which he

described as “a very recent threat to a pharmacist and their pharmacy

36
wherein it was threatened to place a truck filled with fertilizer in front of

the pharmacy and blow it up.” CR.558.

Livingston summed up his assessment of the threat environment

and its immediate connection to the identity of the compounding

pharmacy when he explained why he sought a threat assessment from

McCraw. To begin, he recognized, based on his own expertise, that the

threat environment was “serious.” CR. 1343. He also noted a clear nexus

between the disclosure of the identity of a pharmacy supplying execution

drugs and threats to the pharmacy:

[T]here is an immediate, in my view, nexus between when a
compounding pharmacy is made public and the immediacy or
nearly immediacy of the harassing E-mails and threats – it
happened both in this case and in January of 2014 with
respect to The Apothecary Shop in Oklahoma. The day after
it was reported that they were the likely supplier of
compounded drugs to the Department of Corrections in
Missouri, a very significant and real threat -- threatening E-
mail was sent.

CR.1343-44. In addition to concerns specific to execution drugs and the

identity of the supplying pharmacy, Livingston further noted the nature

of the larger criminal-justice environment within which he, and any

supplier of execution drugs, must operate:

[T]hat spring of 2014 was a very unsettled and dangerous
world. The context included security risks that are inherent

37
 in -- in the criminal justice world that had escalated in general
and specifically over the last number of months . . . . [W]e’re
just roughly a year removed from the director of the Colorado
Department of Corrections being assassinated on March the
19th . . . . At that same time there were specific death threats
to me, both just prior to the Executive Director in Colorado’s
assassination and just shortly after it.

CR.1344-45.

6. McCraw’s Threat Assessment Is Detailed
Evidence Of A Substantial Threat Of Harm That
Is Connected To The Requested Information And
Is Entitled To Deference.

In response to Livingston’s concerns, TDCJ obtained and provided

the OAG and the district court with a threat assessment from Director of

DPS McCraw. Under Cox, McCraw’s assessment of the “probability of

harm” is entitled to deference, so long as it is not a “vague assertion[] of

risk.” Cox, 343 S.W.3d at 119.

McCraw’s assessment is anything but a vague assertion. McCraw

conducted the assessment based on the documents and evidence just

described, as well as open source information and his own expertise,

training, and skill in law enforcement. See CR.634 (noting that his

assessment was based on his “training and experience received

throughout my law enforcement career, including my training and

experience of conducting threat assessments for the Attorney General of

38
the United States and the director of the FBI.”); CR.635-36. Although

McCraw is not a party to this litigation and has no interest in its outcome,

he was nonetheless generally familiar with the issues at the time

Livingston requested a threat assessment from him. CR.634.

McCraw connected the specific evidence he considered with his

ultimate conclusion about the threat environment. He also connected his

threat assessment to the identity of the compounding pharmacy

currently at issue. He explained that he reviewed and based his

assessment on, “among other things,” “an email threat to the apothecary

shop in Oklahoma when it was revealed as a supplier of execution drugs”

as well as email and blog posts setting out “excoriating criticisms of the

Woodlands Pharmacy and Mr. Lovoi after TDCJ revealed the identity of

the supplier of execution drug in 2013.” CR.635; CR.686-87. McCraw’s

methodology “consider[ed] the product of vulnerability, probability, and

consequences to determine the severity of a threat.” Id.

McCraw specifically explained how his assessment was informed by

the underlying evidence of threatened violence surrounding prior

disclosures of the identity of execution-drug suppliers. Regarding the

Humez email, McCraw explained:

39
 I considered the email from Professor Humez to the Oklahoma
pharmacy . . . to constitute a serious threat. The email is
indicative of the fervor surrounding the death penalty issue
that, in my opinion, may likely lead to violence against the
compounding pharmacy if the identity is released.

CR.635. Similarly, “the other emails” in the record that he considered,

although they “did not contain direct threats” of violence in and of

themselves nonetheless “demonstrate the tension and attention

surrounding the provision of execution drugs to TDCJ, which is likely to

lead to violence against the compounding pharmacy if the identity is

disclosed.” CR.636. Given all this detailed evidence, McCraw’s

assessment of a threat based on it is anything but a “vague assertion[]”

Cox, 343 S.W.3d at 119.

McCraw’s assessment of the pharmacy’s high vulnerability is

similarly supported by specific details, and it also is no vague assertion.

He based the assessment on the fact that “the current compounding

pharmacy is open to the public and located in an urban area of a Texas

city.” CR.635. He noted that when researching the Woodlands

Pharmacy, he was able to “locate the pharmacy’s website and then from

open source information I could easily identify and locate the pharmacy’s

employees and their family members.” Id. Moreover, public

40
“[p]harmacies are by design easily accessible to the public.” Id. Thus,

“[a]ny pharmacy that is located in a city and open to the public is easily

accessible and presents a ‘soft-target,’ meaning it is an easy target for

violence, and generally unprotected by significant security measures.”

Id. “The threat extends beyond those inside the pharmacy itself, because

violence that occurs near the pharmacy can injure bystanders as well.”

Id.

Before reaching his conclusion, McCraw also considered “other acts

of violence” as well as the conduct of “radical fanatics, such as opponents

to abortion and animal testing.” CR.636. Ultimately, McCraw

concluded:

If the supplier is identified, there is a substantial (or
significant) threat of physical harm to the pharmacist,
employees, customers, or bystanders. Issues of passion,
including the death penalty, inherently pose a significant risk
of escalation to violence. Moreover, not all acts of violence are
preceded by threats. For example, the murder of the district
attorney in Kaufman County was not preceded by a known
threat. It will be difficult, if not impossible, to stop violence
against a supplier if the person seeking to cause harm does
not put the supplier on notice prior to an attack.

***

It is my opinion, based on my law enforcement training and
experience, as well as the documents, materials, and
conversations in this case, that there is absolutely a

41
 substantial threat of physical harm that would result from the
release of the name of the supplier of the execution drug.

Id.

In sum, detailed evidence conclusively establishes as a matter of

law that there is a substantial threat of physical harm in connection with

the possible release of information identifying the pharmacy and

pharmacist providing execution drugs to Texas.

B. The Assessments Provided By TDCJ’s Experts
Independently Establish The Exception As A Matter Of
Law.

Although TDCJ was not required to provide a law-enforcement-

expert opinion, it nonetheless provided two such opinions. See Cox, 343

S.W.3d at 119 (exception may be established by “detailed evidence or

expert testimony”). TDCJ offered the deposition and affidavit testimony

of a retained expert, Cunningham, as well as the already discussed

deposition and affidavit testimony of an unretained nonparty expert,

McCraw. Both opinions are entitled to deference with regard to their

assessment of the probability of harm, and they independently (and in

combination) confirm that the requested information should not be

disclosed because the physical-safety exception is satisfied as a matter of

law.

42
 It is difficult to imagine expert witnesses more qualified to testify

on threat assessments than Cunningham and McCraw. Cunningham

has spent the vast majority of his 40-year professional career performing

threat assessments and teaching others how to perform them. See pp.

15-18 supra. McCraw, likewise, has extensive relevant experience,

including (among other things) 21 years in the FBI as well as service as

Director of Homeland Security in Texas and as Director of the Foreign

Terrorism Tracking Task Force, where he reported directly to Deputy

Attorney General Larry Thompson at the Department of Justice and

oversaw two threat assessments requested by the U.S. Attorney General.

CR.633; see pp. 8-11 supra.

1. McCraw’s Opinion Demonstrates A Substantial
Threat Of Physical Harm.

TDCJ offered an expert threat assessment from DPS’s Director,

Col. McCraw. As discussed above, McCraw’s assessment of the

probability of harm is entitled to deference under Cox. See Part II.A.6

supra. Moreover, as also discussed at length above, the probability of

harm identified by McCraw (and Livingston and, later, Cunningham) is

connected by detailed, specific evidence to the information that has been

requested here, namely the identity of the compounding pharmacy. See

43
Part II.A.1-6. McCraw’s opinion is “clear, positive, and direct,” is

“credible and free from contradictions and inconsistencies,” and therefore

constitutes valid summary-judgment evidence that conclusively

establishes TDCJ’s entitlement to judgment as a matter of law. See TEX.

R. CIV. P. 166a(c); see Anderson, 808 S.W.2d at 55.

2. Cunningham’s Opinion Demonstrates A
Substantial Threat Of Physical Harm.

Cunningham, a qualified expert on threat assessments with

extensive current assessment training and experience, conducted an

extensive threat assessment and concluded that there is a substantial

threat of physical harm. Cunningham based his opinion on (1) the

documents provided to McCraw, (2) his own substantial experience and

background as a law-enforcement expert, and (3) his own independent

research. CR.567-74.

Cunningham examined a number of factors in developing his

opinion. CR.625-26. First, he referred to an increase in violent crime in

the U.S. between 2011 and 2012, including shootings and bombings, and

an increase in the number of terror cells in the U.S.. See CR.668-69, 625.

This information, he explained, was derived from the FBI’s database,

accessible via its website, which reflects a “.7 percent increase [in] violent

44
crime in the United States from 2011 to 2012.” CR.669; see Crime in the

United States 2012, at http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-

u.s/2012/crime-in-the-u.s.-2012/violent-crime/ violent-crime (last visited

June 4, 2015). Cunningham also referred to the “Alcohol Tobacco and

Firearms . . . database,” which “shows that there were 5900 bombing

incidents domestically this past year, 2013, up 300, approximately, from

2012.” CR.669. He also relied on his own “research in developing two

courses which I teach for Homeland Security, NCBRT, prevention and

deterrence of terrorism,” in which “we talk about trends of terrorism and

violent acts domestically and internationally.” Id. He further relied on

his “work as a primary author on [a] campus emergencies course . . .

where we talk about tracking violence on [college] campuses.” Id.

Cunningham also referred to the sociopolitical climate surrounding

certain policy issues that invoke great passion, like abortion, and he

addressed the amount of violence related to and directed at abortion

clinics, abortion doctors, and businesses and universities involved in

animal research. CR.660, 673-77, 681. Cunningham provided statistics

documenting violence against abortion clinics during the past 38 years:

I will tell you that in -- from ‘77 to 2013, there were eight
murders, 17 attempted murders national -- nationwide, 181

45
 arsons, 42 bombings, 1,495 vandalisms, 2482 trespassing, a
hundred acid attacks, 428 death threats, 15,934 hate mails or
harassing calls, 170,710 picketing, 616 -- 61 [sic] bomb
threats, and clinic blockades. Now, of that, 33,839 arrests
were made.

CR.676. And he explained that pro-life and animal-rights groups are the

best available comparator group for violence that would be targeted

against death-penalty participants. See id.

Next, Cunningham referred to the volatility and overall risk of

(outside-prison) violence surrounding prison issues generally and the

death penalty specifically. See CR.683. He also referred to something

called “the contagion effect,” which results from Internet communications

causing dramatically increased interest in a topic, as with the increased

interest in the execution process after problematic executions in Arizona

and Oklahoma. See CR.656-57, 659-60, 662, 674-75, 682. The contagion

effect is also consistent with the Internet providing greater access to

methods and materials by which people can carry out violence, as well as

a means to recruit members to radical groups. CR.675.

Cunningham explained that there is a dearth of data regarding

violence against compounding pharmacies typically stop producing

execution drugs after being publicly identified as a supplier. He also

46
noted, however, that such withdrawal from the market could actually

result in an increased risk to the remaining targets. CR.676-77.

He also discussed the difficulty associated with predicting who will

perpetrate violence in these types of situations because those who

perpetrate such violence often give no prior warning and make no prior

threats. CR.655-56, 659; see also CR.567, 626. Lastly, Cunningham

noted the difficulties in preventing violence against a highly accessible

target like a compounding pharmacy or its pharmacist, employees, or

bystanders. See CR.626.

Based on these factors, and others, Cunningham concluded:

I conclude that there is a significant and substantial threat of
physical harm to the pharmacy/compounding pharmacy and
pharmacist, and others in the vicinity of the
pharmacy/compounding pharmacy if the identity of the
pharmacy/compounding pharmacy or pharmacist is publicly
disclosed.

CR.625.

C. Plaintiffs’ Arguments Below Misunderstood The
Governing Standards.

Plaintiffs challenged the testimony of McCraw and Cunningham

with their own expert, Parker, who essentially opined that McCraw and

Cunningham offered only “basic and unsupported fear-mongering

47
without any basis” and, ultimately, resorted to nothing more than

“buzzwords” reflecting “inchoate, pie-in-the-sky concerns.” CR.732; see

id. (“All of TDCJ’s arguments are basic and unsupported fear-mongering

without any basis to establish a substantial threat of physical harm.”);

CR.1918.

1. Plaintiffs’ Arguments Below Assumed An
Incorrect Legal Standard.

To start, Plaintiffs arguments below were largely founded on

incorrect formulations of the Cox standard that improperly heightened

TDCJ’s burden. Small distinctions in framing the legal standard are

“very important,” as Plaintiffs themselves have argued, CR.731.

Plaintiffs’ improper presentation of the Cox standard to the district court

undermines the court’s ruling.

For example, Plaintiffs erroneously argued below that TDCJ was

required to show a “high degree of certainty . . . that a substantial threat

of physical harm will occur if the information is disclosed.” CR.732. Cox

reflects no such high-degree-of-certainty requirement. Indeed, Cox

declined to adopt a standard requiring “a reasonably perceived likely

threat.” Cox, 343 S.W.3d at 118 (noting that the standard adopted was

“close, but not identical,” to the rejected standard). Likewise, Plaintiffs

48
improperly argued that a Livingston’s testimony should not be credited

because it supposedly “did not suggest that violence was likely.” CR.743

(emphasis added).

Even more off the mark were Plaintiffs’ prominent—and legally

erroneous—arguments framing the relevant legal standard in terms of a

failure to point to a specific past instance of “violence against a Lethal

Injection Drug provider,” CR.731 (emphasis in original). See id. (arguing

that “there has never been any actual violence (or threat of violence)

against any Lethal Injection drug provider” “[w]hen TDCJ

previously . . . let it be known who supplied them with lethal injection

drugs”). As discussed above, see Part I.C.1 supra, Cox and the PIA do not

require specific past incidents of violence to justify withholding

information that substantially threatens physical harm, and it would be

dangerous to impose such a per se requirement.

Perhaps most egregious were Plaintiffs arguments that a specific,

concrete threat of violence is needed to establish that disclosure would

substantially threaten physical harm. See CR.731 (arguing that TDCJ

did not identify “any direct and actual threat of violence (even though

not carried out) to any provider of Lethal Injection Drugs in Texas”)

49
(emphasis in original). Cox refutes this view of the physical-safety

exception as well. See Cox, 343 S.W.3d at 119.

2. Plaintiffs’ Efforts To Create A Battle Of Experts
On An Issue With Immediate Public-Safety
Implications Is Misguided.

Plaintiffs’ attempts to set their expert Parker against Director of

TDCJ McCraw and Cunningham for purposes of determining the

“probability of harm” reflect a similar misunderstanding of the governing

legal standards and, therefore, should be rejected. Cox, 343 S.W.3d at

119. Cox anticipates deference to a law-enforcement assessment of the

“probability of harm”; it does not countenance “a battle of experts” where

the legal standards governing expert opinions are the lynchpin for

determining whether and to what extent there is a substantial public-

safety threat. Id.

This case is the first opportunity for a court of appeals to apply the

standards announced in Cox. At stake are issues that extend far beyond

death-penalty litigation or the identity of Texas’s provider of execution

drugs. The physical-safety exception will be invoked in future cases in

which it is believed that disclosure of requested information from a

governmental body will result in a substantial threat of physical harm.

50
As Cox makes clear, a DPS or other law-enforcement expert’s assessment

that there is an unacceptably high “probability of harm” should receive

deference; it should not be the target of arguments traditionally reserved

for situations in which no special solicitude is afforded an expert’s

opinion.

Further, even assuming McCraw’s and Cunningham’s opinions are

properly subjected to a full-blown expert analysis or are properly part of

a “battle of the experts,” the opinions readily survive any such attacks,

for all the reasons discussed above and immediately below.

D. Plaintiffs’ Expert’s Testimony Should Not Have Been
Considered And, In Any Event, Could Not Undermine
TDCJ’s Experts’ Testimony.

Plaintiffs’ expert Parker’s testimony should not have been

considered by the district court and, in any event, could not undermine

the testimony of TDCJ’s experts. “An expert witness may testify

regarding matters of scientific, technical, or other specialized matters

only if (1) the expert is qualified, (2) the probative value of the testimony

is not outweighed by the prejudice, and (3) the expert’s opinion is relevant

and based on a reliable foundation.” See TEX. R. EVID. 401-03, 702;

51
Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 215 (Tex. 2010); see E.I. du

Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995).

1. Parker Is Not Qualified.

An expert witness must be qualified to give an opinion by

knowledge, skill, experience, training, or education. See TEX. R. EVID.

702; Broders v. Heise, 924 S.W.2d 148, 153-54 (Tex. 1996). Parker is not

qualified to give an expert opinion on the probability of harm in this case

because he has no recent law-enforcement training.

Parker has been retired from the FBI since 1994 and has no other

relevant, recent law-enforcement or threat-assessment experience.

Parker agreed that the world has changed dramatically since 1994.

CR.963, 2231. This case involves current threats and relates to an

environment that developed within the last one to two years. See CR.704-

05 (describing relevant recent developments in the threat environment).

Parker’s most recent training was six or seven years ago. CR.2220-21.

He no longer holds any security clearance or police license, other than a

private-investigator license. CR.2250. His last certification as a

California police officer was 40 years ago. CR.2188. His current business

52
is exclusively serving as a hired expert witness to opine on “police

practices.” CR.2191-92.

Despite his lack of any recent training or experience, Parker did not

crack a book when formulating his opinion about whether a threat could

be determined based on the documents with which he was provided.

CR.2193. He did not conduct any outside research, CR.2185, and only

reviewed protocols or threat assessment “a couple of years ago” in a

source that he does not remember. CR.2217-19.

In sum, Parker (1) has had no apparent law enforcement training

in over 20 years, (2) did not conduct a threat assessment in connection

with this case, (3) did not look at any books or consult other experts, and

(4) has not taught any courses on threat assessment. Accordingly, he is

not qualified to serve as an expert witness on threat assessment in this

case.

2. Parker’s Opinion Does Not Have A Sufficient
Basis And Is Unreliable.

Expert testimony must be based on sufficient underlying facts or

data, as required by Texas Rules of Evidence 702 and 703. See Merrell

Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). The

53
testimony must also be reliable. Whirlpool Corp. v. Camacho, 298 S.W.3d

631, 637 (Tex. 2009); Robinson, 923 S.W.2d at 557.

Parker’s opinion lacks sufficient basis and is unreliable because he

considered only whether there had been relevant past violent acts

against a pharmacy or prison. He thus refused to consider other, relevant

past violent acts, including the recent assassination of the Director of the

Colorado prison system, death threats against the Director of the Texas

prisons, violent acts carried out against abortion clinics and their

physicians, and violent acts against universities, businesses, and

personnel involved in animal research. See CR.2245-49, 2258. At the

same time, however, Parker conceded that the absence of a violent act

does not mean that one will not or cannot occur, CR.2258-59, and that

there are many people opposed to the death penalty, CR.2253.

Parker’s opinions are also unreliable because he was not engaged

in the appropriate inquiry and is biased. Assuming Parker is qualified

as a law-enforcement expert, the appropriate inquiry for such an expert

in these circumstances is to opine on the probability of harm. See Cox,

343 S.W.3d at 119. Parker’s treatment of the Humez email provides an

example of his misguided inquiry. Parker concluded that the email was

54
not itself a threat and that Humez was merely “expressing his concerns

and, as a concerned citizen, cautioning them [the pharmacy in Oklahoma]

to be aware that there are ‘fanatic’ individuals around who are capable of

duplicating the Oklahoma City Federal building bombing.” CR.793-94.

But whether the email is a threat in and of itself does not answer the

question at hand, which is not whether there is or was an existing threat

but whether the probability of harm is unacceptably high. Cox, 343

S.W.3d at 119. Parker obstinately refused to consider whether the email

reflects an unacceptable level of possible danger, whether or not the

email itself is actually a threat to blow up a pharmacy with a fertilizer

bomb.

Moreover, Parker justified his conclusions on factors that cannot

supply a reliable answer to the question of the probability of harm. For

example, Parker based his conclusions on the following:

• no “direct threats against any pharmacies or individuals
connected to them,” CR.790,

• no “readily identifiable targeted threats,” id.,

• “communications . . . expressing opinions” that “do not appear
to contain any specific threat of violence,” CR.792,

• the exploding-head blog has no “wording which could even be
loosely interpreted as threatening,” CR.792 (emphasis added),

55
 • that it was “unlikely that [Humez] intended to commit any
violence himself,” CR.793 (emphasis added),

• that according to the author of the exploding-head blog, “there
was nothing violent about this at all,” CR.794, and

• “all TDCJ has presented are [ ] vague assertions of risk,
especially since there have been no documented cases of
violence involving such pharmacies,” CR.805.

Cox instructs that specific, identifiable threats are not necessary to

determine that there is an unacceptably high probability of harm. 343

S.W.3d at 119.

Finally, Parker is biased. He sits on the Board of Directors of Death

Penalty Focus, and organization whose goal is to abolish the death

penalty. CR.2252. But Plaintiffs’ September 5, 2014, witness disclosure

provides that Parker is not biased for purposes of serving as an expert in

this case. CR.2289. Moreover, Parker’s CV does not disclose his

membership in Death Penalty Focus, and he only disclosed it near the

end of his six-hour deposition after repeatedly dodging questions about

his membership in organizations. See CR.2162-63. Parker eventually

conceded, “I am biased against the death penalty.” CR.2252. Parker’s

admitted bias against the death penalty renders his opinions unworthy

of any credence.

56
III. IN THE ALTERNATIVE AND AT THE VERY LEAST, THE COURT
SHOULD REMAND BECAUSE PLAINTIFFS CANNOT SHOW
ENTITLEMENT TO JUDGMENT AS A MATTER OF LAW.

Even if the Court were to determine that TDCJ is not entitled to

summary judgment, the grant of summary judgment for Plaintiffs must

nonetheless be reversed and the case remanded for trial on the merits.

Barring a grant of judgment for TDCJ, there would remain (at the very

least) a genuine issue of material fact regarding Plaintiffs’ entitlement to

summary judgement.

A district court, for example, should not resolve at the summary

judgment stage issues of witness creditability or the weight to afford

testimony; those issues are reserved for a trial on the merits, whether the

factfinder at trial is a judge or a jury. See 7 WILLIAM DORSANEO III, TEXAS

LITIGATION GUIDE §101.07[3][a] (2014) (noting that expert testimony that

falls short of qualifying under TEX. R. CIV. P. 166a(c) “does no more than

raise an issue of fact”); see also ALEX WILSON ALBRIGHT, TEXAS COURTS A

SURVEY 461 (Imprimatur Press) (2010-2011).

To the extent there is a fact question concerning whether there is a

substantial risk that releasing the requested information would lead to

violence, a trial on the merits is needed. Because Plaintiffs, at most,

57
could only raise a genuine issue of disputed fact regarding the

applicability of the physical-safety exception (assuming arguendo they

have refuted TDCJ’s entitlement to judgment as a matter of law), the

portion of the order granting Plaintiffs’ summary-judgment motion must

be reversed and the case remanded for trial.

PRAYER

For these reasons, the Court should reverse the district court and

render judgment for TDCJ or, in the alternative, remand the case for trial

on the merits.

58
 Respectfully submitted.

Dated: June 8, 2015

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

SCOTT KELLER

/s/ Richard B. Farrer
RICHARD B. FARRER
Assistant Solicitor General
State Bar No. 24069702

OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-2923
Fax: (512) 474-2697
richard.farrer@texasattorneygeneral.gov

COUNSEL FOR APPELLANT

59
 CERTIFICATE OF SERVICE

I hereby certify that on this the 8th day of June, 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
DEATS, DURST, OWEN & LEVY, 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
ATTORNEY AT LAW
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

60
 CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this

brief contains 11,158 words, excluding the portions of the brief exempted

by Rule 9.4(i)(1).

/s/ Richard B. Farrer
Assistant Solicitor General

61
APPENDIX
 APPENDIX TABLE OF CONTENTS

Order on Plaintiffs’ Motion for Summary Judgment and
Defendants’ Motion for Summary Judgment ....................................................... A

Texas Dep’t of Public Safety v. Cox Texas Newspapers, L.P., and
Hearst Newspapers, L.L.C.,
343 S.W.3D 112, 39 MEDIA L. REP. 2267, 54 TEX. SUP. CT. J. 1428 ......................... B
A
 CAVSE NO. 0-1

MAVRIE N. NAOMI TERR, and, s
N THE D!STRICT RTOf
HIL\RY SHEA.RO. §
Jlfaintiffs §
§
vs. §
§ TRAVIS COlJNTY. TEXAS
TEXAS DEPARTl\'1ENT Of' §
CJUl\IINAL .JOSTICE, §
Defcmhmt §

ORDER ON PLAJNTIFFS' MOTION FOR SU:\·1MARY ,JVDGMENT
and DEfENDANrS MOTION FOR SU:'Vll\,1ARY JVOGM£NT

Came on for consideration at a heari on 3, 20!:+. Plaintiffs' tvlotion !(H· Partial
Summary Judgrnent and Ddcndanf s Iv·lotion l'or Surmnnry Judgrn..:nt Plaintiff~ and Dclcndant
appeared at the hearing through their respective counseL Afh;r consideTing the