Tex. Dep't of Criminal Justice v. Levin

Decision Date25 May 2017
Docket NumberNO. 03-15-00044-CV,03-15-00044-CV
Citation520 S.W.3d 225
Parties TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant v. Maurie LEVIN, Naomi Terr, and Hilary Sheard, Appellees
CourtTexas Court of Appeals

Mr. Manuel Quinto-Pozos, Austin, Ms. Maurie Levin, Mr. Philip Durst, Austin, for Appellees.

Ms. Karen D. Matlock, Mr. Richard B. Farrer, Mr. Matthew H. Frederick, Austin, for Appellant.

Before Chief Justice Rose, Justices Pemberton and Bourland


Bob Pemberton, Justice

This appeal concerns whether the common-law right to withhold "public information" from disclosure under the Public Information Act (PIA) when disclosure "would create a substantial threat of physical harm," first recognized by the Texas Supreme Court in its Cox Texas Newspapers decision,1 shields the identity of a supplier of the lethal-injection drugs Texas uses in executions. At least on this record, we conclude it does not.


In the course of their legal representation of Texas death-row inmates, and against the backdrop of legal and policy controversy regarding so-called "botched" executions by lethal injection in other states, appellees made written requests of the Texas Department of Criminal Justice under the PIA for the agency's "execution protocol," the drugs it uses in lethal injections, any results of testing on such drugs, and the drugs' source. TDCJ would eventually produce all of the information appellees requested except with regard to the drugs' source; it divulged only that the source is a licensed compounding pharmacy that is open to the public and located in an urban area of some Texas city. TDCJ requested a ruling from the Attorney General that it could withhold the specific identity of that pharmacy or pharmacist,2 relying (as relevant to this appeal) on the Cox common-law protection against disclosure that would threaten physical harm. The Attorney General ruled that the Cox protection applied and required TDCJ to withhold the identifying information.3 Appellees then sought judicial relief that included a writ of mandamus to compel disclosure,4 arguing that the Cox protection was inapplicable. The parties agreed to present the merits of that issue for resolution through competing summary-judgment motions. The district court granted appellees' motion while denying TDCJ's. Following an agreed severance to make the summary-judgment rulings final,5 TDCJ perfected this appeal.


In two issues on appeal, TDCJ urges that the district court erred in granting summary judgment for appellees and that the court should have instead granted TDCJ's motion or, alternatively, denied both motions.

Statutory and procedural context

Through the PIA, the Texas Legislature has prioritized a "policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees," in the view that "government is the servant and not the master of the people" and that "[t]he people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know," but "insist on remaining informed so that they may retain control over the instruments they have created."6 To that end, the PIA generally mandates that "public information" (a broadly defined category of information created or maintained incident to governmental functions)7 must be made available by a governmental body upon request,8 and cannot be withheld "except as expressly provided by [the Act]."9 The Legislature has further instructed that the PIA "shall be liberally construed in favor of granting a request for information."10 Reflecting these policies, the governmental body has the burden of proving that information is not subject to disclosure under the Act.11

But as the Texas Supreme Court has emphasized recently, "liberal construction" under the PIA "is not tantamount to boundless reach,"12 and the Act's express limitations include exceptions to the PIA's duty of disclosure—now dozens, in fact—that "embrace the understanding that the public's right to know is tempered by the individual and other interests at stake in disclosing that information."13 Among these exceptions is Section 552.101, which excepts "information considered to be confidential by law, either constitutional, statutory, or by judicial decision."14 The Texas Supreme Court has recognized that "information considered to be confidential ... by judicial decision" has the effect of incorporating protections from the common law. As early as the 1970s, the supreme court held in the Industrial Foundation case that the substantively identical predecessor to Section 552.101 excepted information whose disclosure would violate one's common-law right to "privacy" in the sense of being left alone and free of unwarranted publicity.15 The information is so shielded, the high court held, if: "(1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public."16 More recently, in the Cox decision, the Texas Supreme Court recognized a similar protection against PIA disclosure that is deemed to infringe the long-recognized common-law right to be free of physical harm, the same interest underlying the cause of action for battery.17

The Legislature has tipped the balance back toward disclosure somewhat by providing, in Section 552.022 of the PIA, that the Act's exceptions shield certain specified categories of "public information" (commonly termed "core" or "super public" public information)18 only to the extent such information is also "made confidential under this chapter [the PIA] or other law."19 " ‘Other law’ " for these purposes "includes other statutes, judicial decisions, and rules promulgated by the judiciary,"20 and " ‘do[ ] not have to use the word ‘confidential’ to ... impose confidentiality.' "21 The common-law protections recognized in Cox and Industrial Foundation are considered to impose "confidentiality" in this sense,22 so their applicability effectively obviates Section 552.022's enhanced access to "core" public information.

There is no dispute that the identifying information at issue in this appeal is "public information" potentially subject to PIA mandatory disclosure, and would include at least some "core" public information.23 The parties also agree that TDCJ, as the party resisting disclosure, has the burden of proving that the information is not subject to disclosure under the PIA. Finally, the parties each acknowledge that TDCJ could meet its burden here solely by proving the information is shielded by the Cox protection.

The parties agreed to submit that controlling issue on cross-motions for summary judgment, as previously noted, and both motions relied on the "traditional" standard as applied to a common universe of summary-judgment evidence. We review summary-judgment rulings de novo.24 Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law.25 We take as true any evidence favorable to the non-movant and indulge every reasonable inference and resolve any doubts in the non-movant's favor.26 Where, as here, both sides move for summary judgment on overlapping issues and the trial court grants one motion and denies the other, we review the summary-judgment evidence presented by both sides, determine all questions presented, and render the judgment that the trial court should have rendered.27

In the posture of this appeal, our analysis distills initially to whether, on this summary-judgment record, viewed in the light favorable to TDCJ, the Cox protection does not apply to the identifying information as a matter of law (i.e., the summary-judgment evidence does not present any genuine issue of material fact as to whether the protection would shield the identifying information).28 If the evidence does not present such a fact issue, we affirm; if it does, we must reverse and next consider whether, viewing the summary-judgment evidence in the light favorable to appellees, the Cox protection applies as a matter of law (i.e., the evidence does not present any genuine issue of material fact to the contrary). If such a fact issue is present, we remand; if none, we render summary judgment for TDCJ.

The parties accordingly focus their appellate advocacy on the summary-judgment evidence and the significance they perceive various items to have under Cox . Their arguments reflect divergent understandings of the Cox protection and how it is satisfied. Any meaningful analysis of the summary-judgment evidence must begin with a clear understanding of that legal yardstick.29

The Cox protection

In addition to holding that the common-law right to be free of physical harm made information "confidential" as against the PIA, the Cox court prescribed "the appropriate standard for assessing whether disclosure would violate that interest."30 For this standard, the court looked to the PIA itself, reasoning that "[w]hile we are not bound by the Legislature's policy decisions when we consider protections afforded by the common law, ‘the boundaries the Legislature has drawn do inform our decision.’ "31 The court borrowed from the same PIA exception that the Legislature had enacted immediately following this Court's decision in Cox , in which we had held that the travel vouchers were subject to PIA disclosure in the absence of any contrary precedents from the Texas Supreme Court as of that time.32 That exception, now codified in PIA Section 552.152, states:

Information in the custody of a governmental body that relates to an employee or officer of the governmental body is excepted from the requirements of Section 552.021 if, under the specific circumstances pertaining to the employee or officer, disclosure of the

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3 cases
  • McGehee v. Tex. Dep't of Criminal Justice
    • United States
    • U.S. District Court — Southern District of Texas
    • August 21, 2018
    ...ultimately dissuaded the pharmacy from continuing to supply TDCJ with lethal-injection drugs." Tex. Dep't of Crim. Justice v. Levin, 520 S.W.3d 225, 240 (Tex. App. - Austin 2017, pet. ref'd). The owner of the Woodlands Compounding Pharmacy reported receiving death threats. See Whitaker v. L......
  • Bupp v. Harold Joe Bishop, Jr., Individually & of the Bishop Mgmt. Trust, Gen. Partner of J&K Bishop P'ship, Ltd.
    • United States
    • Texas Court of Appeals
    • January 3, 2018
    ...judgment on overlapping issues and the trial court grants one motion and denies the other." Tex. Dep't of Criminal Justice v. Levin, 520 S.W.3d 225, 229 (Tex. App.—Austin 2017, pet. filed). In those cases, we review the summary-judgment evidence presented by both sides, determine all questi......
  • Tex. Dep't of Criminal Justice v. Levin, 17-0552
    • United States
    • Texas Supreme Court
    • April 12, 2019
    ...identity would necessarily give rise to a substantial—that is, more likely than not—threat of physical harm. 520 S.W.3d 225, 240 (Tex. App.—Austin 2017, pet. granted).While the case was pending before the court of appeals, the Legislature enacted an additional exception to the PIA that make......

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