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Texas Must Tell Attorneys Execution Drug Supplier

March 27, 2014 / 11:19 AM CDT / CBS Texas

HOUSTON (CBSDFW.COM/AP) - A state judge has ordered the Texas prison agency to disclose to attorneys for two inmates its supplier of a new batch of execution drugs.

The ruling Thursday in Austin comes one day after attorneys for two death row inmates filed a lawsuit against the Texas Department of Criminal Justice seeking the information. It was not immediately clear if the agency would comply or appeal the ruling.

The prison agency lost its previous supplier last year after the compound pharmacy's name was made public and it received threats. Prison officials contend the identity of the new drug source should be withheld to protect the new supplier.

The lawsuit against the state agency contends the prisoners cannot evaluate the risk that could result in them being subjected to unconstitutionally cruel pain. Attorneys for convicted killers Tommy Lynn Sells and Ramiro Hernandez-Llanas filed the lawsuit demanding the Texas Department of Criminal Justice name the provider of the pentobarbital, the sedative the state uses for lethal injections.

Sells and Hernandez-Llanas are scheduled to die April 3 and 9 respectively. Sells was condemned for slashing two girls' throats in 1999 at a home near Del Rio; one girl died. Hernandez-Llanas was condemned for the 1997 beating death of a man who owned a ranch where Hernandez worked near Kerrville.

"Time is truly of the essence," the inmates' lawyers said in their lawsuit. "Without information about where the drugs come from, and the purity, potency and integrity of those drugs, neither Mr. Hernandez-Llanas nor Mr. Sells can evaluate the risk that their executions will subject them to cruel and unusual pain in violation of the Eighth Amendment."

The current supply of pentobarbital used for lethal injections in Texas expires April 1. Prison officials said last week they have a new supply but cited security reasons for declining to disclose the supplier's name.

The state attorney general's office previously has said the information should be public and is waiting for arguments from the agency on why the policy should be changed.

The dispute in the state that executes more inmates than any other comes as major drugmakers, many based in Europe, have stopped selling pentobarbital and other substances used in lethal injections to U.S. corrections agencies because they oppose the death penalty.

Texas only had enough pentobarbital to continue carrying out executions through the end of March until it obtained its new supply from the unknown provider. An inmate set to die Thursday would be using the sedative from that supply.

Department of Criminal Justice spokesman Jason Clark declined to comment Wednesday on the lawsuit, saying the agency "doesn't comment on pending litigation." Last week, he said department officials "are not disclosing the identity of the pharmacy because of previous, specific threats of serious physical harm made against businesses and their employees that have provided drugs used in the lethal injection process."

The inmates' lawyers said their filing compelled Texas' corrections department to comply with the state's Public Information Act, adding that the deadline for the agency to submit its request for an attorney general's opinion regarding the new secrecy is April 1.

On Wednesday, an Oklahoma judge voided that state's execution law, agreeing with inmates that a "veil of secrecy" preventing them from seeking information about the drugs used in lethal injections violated their rights under the state constitution. Oklahoma officials plan to appeal.

Oklahoma is among the states that have promised companies confidentiality if they will provide the sedatives or paralyzing agents used to execute condemned prisoners, and went beyond that to prevent information from being revealed even in court.

Arkansas and Missouri keep execution information secret.

While Texas prison officials haven't indicated they want to go to the extent those states have, they are seeking to at least keep the name of their lethal drug source from being revealed.

Last week, Clark, the Department of Criminal Justice spokesman, said, "We are not in conflict with the law. We plan to seek an AG's opinion, which is appropriate in a situation like this, and the AG's office will determine whether it's releasable."

Dallas-based criminal attorney Pete Schulte says the recent shortages of execution drugs may play a role in the defense attorneys desire to know the supplier. "They want to make sure that the drugs do not malfunction, that they are not coming from overseas, that they are produced under the guidelines of the FDA."

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