Attorneys for two death row inmates set to die next month filed a lawsuit in the case. They argued they should have the name of the supplier of pentobarbital that would be used to execute the prisoners.
The Texas Department of Criminal Justice wants to keep it secret, citing escalating threats of violence against execution drug providers.
A three-judge panel of the 3rd Texas Court of Appeals earlier in the day upheld a ruling Thursday from State District Court Judge Suzanne Covington, who said the name of the supplier must be disclosed to lawyers for the two death row inmates. An unknown pharmacy is supplying pentobarbital that would be used to execute the prisoners. The Texas Department of Criminal Justice wants to keep it secret, citing escalating threats of violence against execution drug providers.
The Texas Attorney General's took that ruling to the ruling to the Texas Supreme Court.
Covington's order would provide the information only to attorneys for condemned prisoners Tommy Lynn Sells and Ramiro Hernandez-Llanas, who argued the risk of them being subjected to unconstitutionally cruel pain could not be evaluated without knowing the source of the pentobarbital used by Texas for executions.
In his argument to the appeals court, Deputy Solicitor General Adam Aston said it "defies logic to believe that this type of an investigation could be conducted while maintaining the confidentiality of the compounding pharmacy."
But Maurie Levin, one of Sells' attorneys, said the state's appeal "suggests that their concern is not only with the safety of the pharmacy or pharmacists, but also in keeping the information secret from the public and inmates scheduled for imminent execution."
State prison officials have lost previous attempts to keep information about its execution drug supplier confidential, but Assistant Attorney General Nicole Bunker-Henderson argued before Covington on Thursday that circumstances now have changed and "there has been a significant, real concrete threat" to pharmacies that supply the drugs.
The prison agency lost its previous supplier last year after the compound pharmacy's name was made public and it received threats.
Sells is set to die April 3, followed six days later by Hernandez-Llanas. Sells was condemned for slashing two girls' throats in 1999 at a home near Del Rio; one girl died. Hernandez-Llanas was condemned for the 1997 beating death of a man who owned a ranch where Hernandez worked near Kerrville.
Their executions have not been delayed, but once the source of the drugs is given to their attorneys a delay could be sought based on questions about the supplier. State attorneys have said the drugs have been tested and fall within acceptable ranges for potency.
The current supply of pentobarbital used for lethal injections in Texas expires April 1. Prison officials said last week they obtained a new supply but cited security reasons for declining to disclose the supplier's name.
The office of Texas Attorney General Greg Abbott, obligated to represent the state prison agency in court, has previously concluded the information should be public. Bunker-Henderson told Covington the previous rulings were informal and shouldn't be applied to other case.