The last time the Texas Department of Criminal Justice secured a cache of pentobarbital, the drug it uses to execute prisoners, the Houston-area compounding pharmacy that supplied it had second thoughts.

"[I]t was my belief that this information would be kept on the 'down low,' and that it was unlikely that it would be discovered that my pharmacy provided these drugs," Dr. Joseph Lavoi of The Woodlands Compounding Pharmacy wrote once the involvement of his business was disclosed. "I find myself in the middle of a firestorm I was not advised of and did not bargain for."

Here's the thing: ethical debates about the death penalty aside, the identity of government vendors is public under state open records laws. It's one of the more bread-and-butter tenets of open government; otherwise, how to tell if taxpayer money is being well spent?

With the Lavoi-supplied pentobarbital set to expire on April 1 (TDCJ refused his demand that it return the drug), and a pair of executions looming, Texas again finds itself in the awkward position of fighting to hide the source of its new supply of execution drug.

Awkward because Texas Attorney General Greg Abbott's office, which is representing the state, is the arbiter of the state's Public Information Act, which contains no exemptions for pentobarbital manufacturers. At the same time, past experience has shown that releasing their identity will hinder the state's ability to get the drug and, by extension, legally execute prisoners.

That's not what the state's actually saying, of course. Arguing last week that condemned inmates Tommy Lynn Sells (set to die April 3) and Ramiro Hernandez-Llanas (April 9) should not be told the source of the drugs that will soon be coursing through their veins, assistant AG Nicole Bunker-Henderson said the need for secrecy trumps the need for open government because "there has been a significant, real concrete threat against similarly situated pharmacists."

Maybe so, and if the threats were physical, they should be dealt with by law enforcement. But the main threat is clearly to a pharmacy's reputation which, if you're supplying execution drugs to the government, seems like fair game.

State District Judge Suzanne Covington split the baby on Thursday, ruling that the drug maker's identity should be released, but only to Sells, Hernandez-Llanas, and their lawyers. An appeals court agreed on Friday morning but, later on Friday, the Texas Supreme Court issued a stay.

A full hearing will take place in mid- to late-April, meaning that, unless Sells and Hernandez-Llanas' executions are delayed by a criminal appeals court (the Supreme Court handles only civil matters), neither man will be around to learn the final outcome.

Source: Dallas Observer, March 31, 2014