# Texas Department of Criminal Justice v. Maurie Levin, Naomi Terr, and Hilary Sheard > Texas Court of Appeals, 3rd District (Austin) · June 10, 2015 URL: https://www.frixlaw.com/law-library/cases/4067672 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** June 10, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4067672 ## How later opinions describe it (automated extraction) - noting that the standard adopted was “close, but not identical,” to the rejected standard ## Opinion text 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