No. 03-15-00044-CV 

In the Court of Appeals 

for the Third Judicial District 

Austin, Texas

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

Attorney General of Texas 

CHARLES E. ROY

First Assistant Attorney 

General 

Scott A. Keller 

Solicitor General 

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

COUNSEL FOR APPELLANT

ORAL ARGUMENT REQUESTED

ACCEPTED

03-15-00044-CV

5603446

THIRD COURT OF APPEALS

AUSTIN, TEXAS

6/9/2015 2:15:01 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 6/10/2015 11:09:01 AM JEFFREY D. KYLE Clerk
i 

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 
ii 

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 

 
iii 

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
iv 

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 SecondGuess 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 
v 

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
vi 

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
vii 

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 
viii 

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 
ix 

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-theu.s/2012/crime-in-the-u.s.-2012/violent-crime/ violentcrime (last visited June 4, 2015) .................................................... 45 

Tex. Att’y Gen. OR2014-09184 (2014) ................................................ x, 13 

 
x 

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. 

 
xi 

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. 
xii 

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 physicalsafety exception such that a trial on the merits is required. 
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 
2 

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 publicsafety side of the scale. Accordingly, Cox requires deference to lawenforcement 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 
3 

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. 
4 

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 
5 

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 
6 

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. 
7 

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. 
8 

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 
9 

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. 
10 

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. 
11 

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. 
12 

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 
13 

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. 
14 

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 
15 

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 
16 

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 
17 

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 
18 

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 
19 

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 
20 

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 
21 

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 
22 

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 
23 

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, 
24 

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. 
25 

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 
26 

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 publicsafety 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 
27 

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 
28 

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 SecondGuess 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 
29 

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 
30 

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. 
31 

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 physicalsafety 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 
32 

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 
33 

“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 
34 

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. 
35 

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 
36 

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 
37 

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 Email 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 
38 

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 
39 

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: 
40 

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 
41 

“[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 
42 

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-enforcementexpert 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. 
43 

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 
44 

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 
45 

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-theu.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 
46 

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 
47 

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 
48 

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 
49 

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”) 
50 

(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 publicsafety 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. 
51 

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; 
52 

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 
53 

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 
54 

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 
55 

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), 
56 

• 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. 
57 

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, 
58 

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. 

 
59 

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
60 

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 
61 

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 
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 
2312

CAVSE NO. 0-1 

MAVRIE N. NAOMI TERR, and, 

HIL\RY SHEA.RO. 

Jlfaintiffs 

vs. 

s N 

§ 

THE D!STRICT RTOf 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

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 <lrgumcnts made a! 

the hearing on l)ecernbcr 20 l the relevant pleadings on l!!e. the surnmary judgment evidence 

tendered !o 1hc Court at the time of tb~.: hearing, and the C s separate on Plainti and 

Dt.~l'endant's Objections to and l\'hnions 10 Strike Summary Judgment and Delendant" s 

Motion to Strike Plaintit1s' Ex Thomas Parker, !10\V finds that Plaintiffs' Mntion f(lr 

Partial Summary Judgment should 

should rw denied. 

IS THEREFOR!: ORDER 

for Partial Summary Judgment is 

gramed and Dcl\.~ndan( s Motion Summary Judgm.;nt 

ADJUDGED D DECR that the Plaintiffs' fV!ution 

!T lS ORDERED. ADJ!JD(]ED ANI) 

ErvmER. 201 

BYRNE 

JUDC3E PRESiDING 
B 
Page 1

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428

(Cite as: 343 S.W.3d 112)

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Supreme Court of Texas.

TEXAS DEPARTMENT OF PUBLIC SAFETY, 

Petitioner,

v.

COX TEXAS NEWSPAPERS, L.P., and Hearst 

Newspapers, L.L.C., Respondents.

No. 09–0530.

Argued Sept. 15, 2010.

Decided July 1, 2011.

Background: Newspapers brought action under 

Texas Public Information Act (PIA) against Department of Public Safety (DPS), seeking writ of mandamus to compel the disclosure of expense vouchers 

relating to Governor's travel. After a bench trial, the 

261st Judicial District Court, Travis County, Scott H. 

Jenkins, J., granted the writ. Department appealed, and 

the Court of Appeals, 287 S.W.3d 390, affirmed. The 

DPS petitioned for review.

Holding: Upon granting review, the Supreme Court, 

Jefferson, C.J., held that remand was necessary to 

determine if revelation of requested documents substantially threatened physical harm.

Reversed and remanded.

Wainwright, J., filed opinion concurring in the 

judgment joined by Johnson, J.

West Headnotes

[1] Records 326 31

326 Records

 326II Public Access

 326II(A) In General

 326k31 k. Regulations limiting access; offenses. Most Cited Cases

A law does not have to use the word “confidential” to expressly impose confidentiality.

[2] Constitutional Law 92 2471

92 Constitutional Law

 92XX Separation of Powers

 92XX(C) Judicial Powers and Functions

 92XX(C)2 Encroachment on Legislature

 92k2471 k. Modification of common 

law. Most Cited Cases

While the Supreme Court is not bound by the 

Legislature's policy decisions when it considers protections afforded by the common law, the boundaries

the Legislature has drawn do inform its decision.

[3] Records 326 63

326 Records

 326II Public Access

 326II(B) General Statutory Disclosure Requirements

 326k61 Proceedings for Disclosure

 326k63 k. Judicial enforcement in general. Most Cited Cases

Remand was necessary in action by newspapers 

seeking disclosure of expense vouchers relating to 

Governor's travel under the Texas Public Information 

Act (PIA) to determine if revelation of requested 

documents substantially threatened physical harm; 

PIA protected from disclosure information that substantially threatened physical harm. V.T.C.A., Gov-
Page 2

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428

(Cite as: 343 S.W.3d 112)

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

ernment Code § 552.101.

[4] Records 326 54

326 Records

 326II Public Access

 326II(B) General Statutory Disclosure Requirements

 326k53 Matters Subject to Disclosure; 

Exemptions

 326k54 k. In general. Most Cited Cases

Common law protects individuals from physical 

harm, and, consistent with the Texas Public Information Act (PIA), that protection extends to the disclosure of information that substantially threatens

such harm. V.T.C.A., Government Code § 552.101.

*112 Michael P. Murphy, Asst. Solicitor General, 

James C. Ho, Gibson Dunn & Crutcher LLP, Dallas, 

David S. Morales, Office of the Attorney General of 

Texas, Deputy First Assistant Attorney General, Attorney General Greg W. Abbott, Attorney General of 

Texas, Peter Carl Hansen, Office of the Attorney 

General, Bill Davis, Office of the Attorney General of 

Texas, Office of Solicitor General, Barbara Bryant 

Deane, Assistant Attorney General, Brenda 

Loudermilk, Office of the Attorney General of Texas, 

Matthew T. Bohuslav, Office of the Attorney General, 

for Texas Department of Public Safety.

William Gerow Christian, Graves Dougherty Hearon 

& Moody, PC, Austin, for Cox Texas Newspapers, 

L.P.

Joseph R. Larsen, Sedgwick, Detert, Moran & Arnold, 

LLP, Houston, for Amicus Curiae Freedom of Information Foundation of Texas.

*113 Chief Justice JEFFERSON delivered the opinion 

of the Court, joined by Justice HECHT, Justice 

GREEN, Justice GUZMAN, and Justice LEHRMANN.

Our common law protects from public disclosure 

highly intimate or embarrassing facts. We must decide 

whether it also protects information that substantially 

threatens physical harm. We conclude that it does. 

Both sides raise important questions, not just about 

safety but also about the public's right to know how 

the government spends taxpayer money. Those issues 

could not have been fully litigated under the standard 

that prevailed before today's decision. Accordingly, 

we reverse the court of appeals' judgment and remand 

the case to the trial court for further proceedings.

I. Background

In separate requests, two reporters representing 

three newspapers asked the Department of Public 

Safety for travel vouchers from Governor Rick Perry's 

security detail. One request was limited to the Governor's out-of-state trips in 2001 and 2007; the other 

was not confined to a specific period of travel. Believing all of the documents to be excepted from disclosure under the Public Information Act (specifically 

Government Code section 552.101), DPS sought a 

ruling from the Attorney General's office.

DPS noted that it is responsible for staffing the 

governor's protective detail and that it does not publicly discuss security practices or the identity or

numbers of officers so assigned. DPS offered to release aggregated expense information, warning 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.”

Based solely on DPS's letter and inspection of a 

subset of the responsive documents, the Attorney 

General determined that release of the information 

would place the governor in imminent threat of 

physical danger. Accordingly, the Attorney General 

concluded that the information fell within a “special 

circumstances” aspect of common law privacy that 
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required DPS to withhold the submitted information in 

its entirety under Government Code section 552.101. 

FN1 Cox and Hearst, publishers of the newspapers in 

question, sued DPS, seeking a writ of mandamus to 

compel complete disclosure. See TEX. GOV'T CODE 

§ 552.321(a). After a bench trial, the trial court found 

that public disclosure of the information in the 

vouchers would not put any person in imminent threat 

of physical danger or create a substantial risk of serious bodily harm from a reasonably perceived likely 

threat. The trial court ordered the clerk to issue a writ 

of mandamus compelling DPS to produce the vouchers in their entirety.

FN1. Twice before, the Attorney General 

ruled that similar vouchers had to be disclosed. See Tex. Att'y Gen. OR2004–4723; 

Tex. Att'y Gen. OR2002–0605. In those instances, however, the only exception DPS 

urged was Government Code section 

552.108, which protects certain law enforcement information. See TEX. GOV'T 

CODE § 552.108. Because he believed that 

exception to be discretionary, however, the 

Attorney General ruled that it could not be 

considered in conjunction with section 

552.022. See id. § 552.022 (making certain 

information in vouchers public unless expressly confidential under “other law”). DPS 

did not appeal either of those rulings.

The court of appeals affirmed. 287 S.W.3d 390, 

398. It held that the Attorney General's “special circumstances” exception conflicted with Industrial 

Foundation of the South v. Texas Industrial Accident 

Board, 540 S.W.2d 668, 685 (Tex.1976). *114 Id. at 

394. According to the court of appeals, Industrial 

Foundation “declared its two-part test to be the ‘sole 

criteria’ for the disclosure of information to be deemed 

a wrongful publication of private information under

common law.” Id. (quoting Industrial Foundation,

540 S.W.2d at 686). Because DPS conceded that the 

first prong of that test (that the information contains 

highly intimate or embarrassing facts) had not been

satisfied, the court held that the vouchers could not be 

withheld based on the common law right of privacy. 

Id. at 395. The court also rejected DPS's claim that the 

Fourteenth Amendment to the United States Constitution barred disclosure of information that would 

create a substantial risk of serious bodily harm from a 

perceived likely threat. Id. at 398. The court observed 

that “[w]hether the privacy interests at issue here

should merit protection under the PIA is a question for 

the legislature.” Id.

We granted the petition for review to examine 

whether the public's right to information is subject to 

reasonable limitations when its production may lead to 

physical harm.FN2 53 Tex. Sup.Ct. J. 1023 (Aug. 20, 

2010). DPS asserts that the vouchers are confidential 

under the common law and under Government Code 

section 418.176(a)(2).

FN3 We address each argument 

in turn.

FN2. The Freedom of Information Foundation of Texas submitted an amicus curiae 

brief in support of Cox and Hearst.

FN3. DPS no longer makes an argument 

based on a constitutional right of privacy.

II. Does “other law” include a common law right to 

be free from physical harm?

[1] The PIA guarantees access to public information, subject to certain exceptions. See generally

TEX. GOV'T CODE ch. 552. Those 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. See generally

TEX. GOV'T CODE ch. 552, subch. C. In 1999, the 

Legislature excluded certain categories of public information from the exceptions. See id. § 552.022. This 

core public information is currently FN4 protected from 

disclosure only if it is “ ‘expressly confidential under 

other law,’ meaning law other than Chapter 552 of the 
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Government Code, which is the Public Information 

Act.” In re City of Georgetown, 53 S.W.3d 328, 331 

(Tex.2001) (quoting TEX. GOV'T CODE § 

552.022(a)). “Other law” includes other statutes, judicial decisions, and rules promulgated by the judiciary. Id. at 332. “A law does not have to use the word 

‘confidential’ to expressly impose confidentiality.” Id.

at 334.

FN4. The Legislature has since amended 

section 552.022(a). Effective September 1, 

2011, core public information may be withheld if it is confidential under either the PIA 

or other law. See Act of May 30, 2011, 82nd 

Leg., R.S., S.B. 602, § 2 (to be codified at 

TEX. GOV'T CODE § 552.022(a)).

The parties agree that the vouchers contain core 

public information.FN5 See TEX. GOV'T CODE § 

552.022(a)(3) (including “information in an account, 

voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental 

body”). For this reason, that information is presently 

unaffected by the Legislature's passage, five days after 

the court of appeals' decision, of an amendment excepting public information from disclosure “if, under 

the specific circumstances pertaining to the [government] employee or officer, disclosure of the information would subject the employee or officer to a 

substantial*115 threat of physical harm.” Act of June 

3, 2009, 81st Leg., R.S., ch. 283, § 4, 2009 Tex. Gen. 

Laws 742 (codified at TEX. GOV'T CODE § 

552.151). Because this exception is in the PIA, it does 

not currently apply to core public information.FN6

TEX. GOV'T CODE § 552.022(a).

FN5. The parties do not address, and we do 

not decide, what voucher information is 

“core” and what is not.

FN6. The Legislature recently passed (although the Governor has not yet acted on) an 

amendment making vouchers confidential, 

but that amendment would not apply to the 

vouchers at issue in this case. Act introduced 

May 31, 2011, 82nd Leg., 1st C. S., S.B. 1, 

art. 79A (to be codified at TEX. GOV'T 

CODE ch. 660).

We turn, then, to DPS's argument that “other law” 

includes a common law right to be free from physical 

harm. DPS urges an exception for cases in which there 

is an imminent threat of physical danger. DPS asserts 

that if the common law protects personal privacy, it 

must logically protect physical safety as well. Ensuring the physical safety of its citizens, says DPS, is the 

“primary concern of every government,” FN7 and 

preventing disclosure that would threaten physical 

safety is deeply rooted in the common law. See, e.g., 

Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 

627, 629 (Tex.1967) (observing that “ ‘[t]he interest in 

freedom from intentional and unpermitted contacts 

with the plaintiff's person is protected by an action for 

the tort commonly called battery’ ” (quoting WILLIAM L. PROSSER, LAW OF TORTS 32 (3d 

ed.1964))).

FN7. United States v. Salerno, 481 U.S. 739, 

755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).

Freedom from physical harm is indeed a hallmark 

of our common law. One of our earliest reported cases 

involving battery was decided by the Supreme Court 

of the Republic of Texas. Eli Williams sued Jesse 

Benton for assault and battery. Benton v. Williams,

Dallam 496, 496 (Tex.1843). Benton filed a plea asserting that he should not have to answer the complaint because “Williams [was] of African descent, 

and not entitled by law to maintain his action.” Id. at 

496–97. The Court rejected that contention, even 

though the constitution at that time provided that the 

descendants of Africans were not entitled to the rights 

of citizens and “shall not be permitted to remain 

permanently in the republic without the consent of 

congress.” Id. at 497. The Court held that insulating 
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Benton from Williams's battery claim would be 

“against law, contrary to the spirit of our institutions, 

and in violation of the dictates of common humanity.” 

Id. The Court affirmed the trial court's judgment 

against Benton. Id.

Our courts have, since then, consistently protected individuals' right to be free from physical 

harm.FN8 Blackstone described three “absolute rights,” 

one of which was “[t]he right of personal security,” 

consisting of “a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and 

his reputation.” 1 WILLIAM BLACKSTONE, 

COMMENTARIES *125 (1769). The common law's 

recognition of an action for battery emerged as a 

means of “keep[ing] the peace by affording a substitute*116 for private retribution,” FN9 and we have 

recognized common law battery claims for more than 

a century. See, e.g., Sargent v. Carnes, 84 Tex. 156, 19 

S.W. 378, 378 (1892) (affirming judgment on plaintiff's assault and battery claim). Protection from 

physical harm is thus more firmly entrenched in our

common law than the right of privacy, a relative 

newcomer. W. PAGE KEETON, ET AL., THE LAW 

OF TORTS 849 (5th ed.1984)(noting that “[p]rior to 

the year 1890, no English or American court ever had 

granted relief expressly based upon the invasion [of 

the right of privacy]”). Indeed, we did not formally 

recognize the privacy tort until 1973, although our

courts of civil appeals had hinted at it previously.

FN10

FN8. See, e.g., Operation Rescue–Nat'l v. 

Planned Parenthood of Houston & Se. Tex., 

Inc., 975 S.W.2d 546, 564 (Tex.1998)

(holding that “protecting the health and 

safety of clinic patients is a compelling state 

interest justifying restrictions on the demonstrations”); see also RESTATEMENT 

(THIRD) OF TORTS: LIABILITY FOR 

PHYSICAL & EMOTIONAL HARM § 5 

(stating that “[a]n actor who intentionally 

causes physical harm is subject to liability for 

that harm”); cf. G., C. & S.F. R'y v. Styron, 2 

Posey 275, 276–77 (Tex. Comm'n App. 

1883) (not precedential) (noting that the 

common law recognized actions for injuries “ 

‘to the absolute rights of persons, as for assaults, batteries, wounding, injuries to the 

health, liberty and reputation’ ” (quoting 1 

CHITTY ON PLEADINGS 60)(emphasis 

added)).

FN9. W. PAGE KEETON, ET AL., THE 

LAW OF TORTS 41 (5th ed.1984).

FN10. See Billings v. Atkinson, 489 S.W.2d 

858, 860 (Tex.1973) (holding, for the first 

time, that “an unwarranted invasion of the 

right of privacy constitutes a legal injury for 

which a remedy will be granted”); Milner v. 

Red River Valley Pub. Co., 249 S.W.2d 227, 

229 (Tex.Civ.App.-Dallas 1952, no writ)

(refusing to allow recovery for violation of 

right of privacy, because it was “not ... recognized under the common law, as it existed 

when we adopted it,” but noting that other 

actions (such as penalties for libel and 

eavesdropping) provided some protection).

Nonetheless, thirty-five years ago, we held that 

the common law privacy protection exempted documents from disclosure under the PIA. Indus. Found.,

540 S.W.2d at 686. We have never addressed whether 

the common law right to be free from physical harm 

applies as well. We conclude that it does.

The Legislature has recognized the importance of 

protecting physical safety, notwithstanding the mandate that courts construe the PIA in favor of disclosure. See TEX. GOV'T CODE § 552.001(b). Several 

PIA exceptions are grounded in a concern for physical 

safety, and the Legislature's swift passage of an exception for information that would pose a “substantial 

threat of physical harm” confirms the primacy of this 

interest.FN11
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FN11. See, e.g., TEX. GOV'T CODE §§ 

552.108 (exempting information held by a 

law enforcement agency or prosecutor if it 

involves a threat against a peace officer), 

552.1176 (making home address, phone 

number, and social security number of Texas 

lawyers and judges confidential), 552.119 

(making photographs of peace officers confidential), 552.127 (excepting identifying 

information from participants in neighborhood crime watch organizations), 552.151 

(excepting certain information from disclosure if it would pose a “substantial threat of 

physical harm”); see also House Comm. on 

State Affairs, Bill Analysis, Tex. H.B. 1237, 

80th Leg., R.S. (2007) (noting that release of 

attorney personal information may “subject 

attorneys including current and former state 

and federal judges and prosecutors and their 

family members to harm relating to their 

personal safety or possible identity theft”); 

House Comm. on State Affairs, Bill Analysis, Tex. H.B. 273, 75th Leg., R.S. (1997) 

(commenting on “threats and acts of retaliation against the members of [neighborhood 

crime watch organizations]”); House Comm. 

for Public Safety, Bill Analysis, Tex. H.B. 

474, 70th Leg., R.S. (1987) (noting that routine release of peace-officer photographs 

endangers officers' lives).

Additionally, since the 1970s, the attorney general has applied a “special circumstances” exception 

to disclosure in over 230 cases. Often, these special 

circumstances included situations in which disclosure 

would place individuals in danger of physical 

harm.FN12 The Attorney General *117 has described 

the exception as covering a “very narrow set of situations in which release of the information” FN13 would 

cause someone to face “an imminent threat of physical 

danger.” Tex. Att'y Gen. ORD1977–0169, at 6. It must 

be “more than a desire for privacy or a generalized

fear of harassment or retribution.” Id.

FN12. See, e.g., Tex. Att'y Gen. 

OR2008–03289 (holding that home address, 

telephone number, and other identifying information relating to a Dallas Area Rapid 

Transit employee fell within the special circumstances exception, as information was 

requested by a former employee who had 

threatened that individual); Tex. Att'y Gen. 

OR2008–01570 (determining that special 

circumstances justified withholding information, as city showed that former employee 

had made threatening statements to city 

staff); Tex. Att'y Gen. OR2004–10845

(holding that special circumstances justified 

withholding identity of alleged crime victim 

due to potential threat to victim's safety); 

Tex. Att'y Gen. ORD1977–0169 (holding 

that employees' addresses could be withheld 

because employees showed that their lives 

would be endangered if the information was 

disclosed).

FN13. Tex. Att'y Gen. OR2004–10845, at 2.

The court of appeals held that the Attorney General's “special circumstances” exception conflicted

with Industrial Foundation, in which we said that the 

“sole criteria” for determining whether information

was exempt from disclosure as “confidential by judicial decision” was whether the information was of 

legitimate public concern and whether its publication 

would be highly objectionable to a reasonable person. 

287 S.W.3d at 394 (citing Industrial Foundation, 540 

S.W.2d at 686). That is an accurate statement for 

assessing matters involving that branch of the invasion-of-privacy tort (the only exception at issue in 

Industrial Foundation ), but not for other matters that 

are confidential under judicial decision. See, e.g., Ctr. 

for Econ. Justice v. Am. Ins. Ass'n, 39 S.W.3d 337, 

348 (Tex.App.-Austin 2001, no pet.) (determining that 

because the “[c]ommon law protects information that
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meets the traditional six-factor test for trade-secret 

protection,” information was excepted from disclosure 

under the PIA). The court of appeals' holding is understandable, given that the Attorney General has 

characterized the “special circumstances” exception

as falling under the common law privacy umbrella. 

See, e.g., Tex. Att'y Gen. OR2005–07052, at 6 (noting 

that “information also may be withheld under section 

552.101 in conjunction with common law privacy 

upon a showing of certain ‘special circumstances' ”). 

But freedom from physical harm is an independent 

interest protected under law, untethered to the right of 

privacy.

The privacy interest protects against four distinct

kinds of invasions (intrusion upon seclusion, public 

disclosure of private facts, false light publicity, and 

appropriation); physical harm is not among them.FN14

KEETON, THE LAW OF TORTS 40, 851 (noting 

that privacy is “not one tort, but a complex of four”). 

We have characterized privacy as “the right of an 

individual to be left alone, to live a life of seclusion, to 

be free from unwarranted publicity.” Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex.1973) (citing 77 

C.J.S. Right of Privacy § 1). By contrast, the common 

law right to be free from physical harm is an interest in 

personal integrity, distinct from that covered by the 

privacy interest. KEETON, THE LAW OF TORTS 

40.FN15 It is integral to a civil society. Although mischaracterized as a privacy related exception, the 

“special circumstances” doctrine protects the right we 

have long recognized at common law.

FN14. As we noted in Industrial Foundation,

the United States Supreme Court has also 

recognized a constitutional right of personal 

privacy in certain situations. Indus. Found. of 

the South v. Tex. Indus. Accident Bd., 540 

S.W.2d 668, 679 (Tex.1976).

FN15. See also Fisher v. Carrousel Motor 

Hotel, Inc., 424 S.W.2d 627, 629 (Tex.1967)

(describing battery as protecting “[t]he 

plaintiff's interest in the integrity of his person”) (quoting PROSSER, LAW OF TORTS 

32 (3d ed.1964)).

[2] Both the legislative and executive branches 

have recognized that, as valuable *118 as the right to 

public information is, a person's physical safety supersedes it. Those branches are not alone. Our common law protects—and has always protected—that 

interest, making such information confidential. We 

must decide, then, the appropriate standard for assessing whether disclosure would violate that interest. 

While we are not bound by the Legislature's policy 

decisions when we consider protections afforded by 

the common law, “the boundaries the Legislature has

drawn do inform our decision.” Ford Motor Co. v. 

Miles, 967 S.W.2d 377, 383 (Tex.1998); see also 

Austin v. HealthTrust, Inc., 967 S.W.2d 400, 403 

(Tex.1998). We conclude that the “substantial threat 

of physical harm” standard enunciated by the Legislature appropriately describes the interest protected 

under the common law, and information may be 

withheld if disclosure would create a substantial threat 

of physical harm. See TEX. GOV'T CODE § 552.151. 

We next examine that standard in light of the record 

produced at trial.

[3] The trial court heard testimony from witnesses 

and reviewed the relevant documents and other exhibits. Although DPS proferred categories of lump 

sum expenses, showing amounts spent on airfare, 

lodging, meals, car rental, and related matters, it argued that disclosing the vouchers themselves would 

give those intent on harming the governor the means

to accomplish that goal. DPS contended that the information revealed travel patterns, the number and 

placement of DPS officers on the detail, and how far in 

advance officers visit a location prior to the governor's 

arrival. The publishers presented evidence that the

itemized vouchers and related documents disclose 

more information (and are more valuable to taxpayers, 

who fund the travel) than do line items with lump sum 

totals. The trial court concluded, categorically, that 
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“public disclosure of the information in the vouchers 

requested by Cox and Hearst would not put any person 

in an imminent threat of physical danger or create a 

substantial risk of serious bodily harm from a reasonably perceived likely threat”—the standard for the 

Attorney General's “special circumstances” test and

the constitutional exception urged by DPS, respectively. This determination is close, but not identical, to 

the standard we announce today for the common law 

right of physical safety.

We have remanded a case to the trial court when 

we have changed our precedent or when the applicable 

law has otherwise evolved between the time of trial

and the disposition of the appeal. See, e.g., Twyman v. 

Twyman, 855 S.W.2d 619, 626 (Tex.1993) (remand in 

interest of justice because case was tried on legal

theory overruled by Court); Caller–Times Publ'g Co., 

Inc. v. Triad Commc'ns, Inc., 826 S.W.2d 576, 588 

(Tex.1992) (remand in interest of justice because 

Court announced new liability standard). We have 

also remanded for a trial court to determine “in light of 

[our] opinion, whether any of the information should 

be withheld from disclosure because confidential.” 

Indus. Found., 540 S.W.2d at 686. Here, our decision 

recognizes, for the first time, a common law physical 

safety exception to the PIA. And even though the 

interest protected under that exception is 

well-established in our law, we have never before 

addressed whether or how it applies to the PIA. We 

conclude that a remand is appropriate.

On remand, the trial court must closely examine 

each of the disputed documents. DPS is likely correct 

in one sense: disclosure of some of the information in 

the vouchers may create a substantial threat of physical harm because it reveals specific details about the 

number of officers assigned to protect the governor, 

their general*119 location in relation to him, and their 

dates of travel. Indeed, the vouchers divulge the 

number of officers the DPS deemed necessary for the

governor's security, the specific location (hotel and 

room number) where the officers resided when 

providing that security, and the identity of each officer 

the Department assigned to the governor's protection. 

Because the past is prologue, at least when it reveals 

protocol DPS has implemented for ensuring the safety 

of government officials, we cannot agree that information from prior trips could not be used to inflict 

future harm.

But this may not justify withholding all but the 

ultimate dollar figure for trips abroad, as DPS proposes. In this respect, the publishers' request has merit: 

the documents themselves provide a more complete 

picture of how taxpayer money is spent than do the 

general categories and totals produced by DPS. This

fact was not lost on the Legislature, which categorized 

certain information in vouchers as core public information. See TEX. GOV'T CODE § 552.022(a). And 

we agree with the trial court that the public has a legitimate interest in how public money is spent on 

official state business. 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. A certain amount of deference must be afforded DPS officers and other law 

enforcement experts about the probability of harm, 

although vague assertions of risk will not carry the 

day. But the public's right to “complete information” 

FN16 must yield when disclosure of that information 

would substantially threaten physical harm. On remand, the trial court must ascertain, under this standard, what information may be confidential and what 

must be disclosed. Accordingly, we remand the case 

for a new trial.

FN16. TEX. GOV'T CODE § 552.001(a).

A brief word in response to the concurrence. The 

concurrence says our holding would “establish 

judge-made exceptions to the PIA's required disclosure of information to the public, contradicting the 
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unanimous determination in our precedent, Industrial 

Foundation of the South v. Texas Industrial Accident 

Board.” 343 S.W.3d at 121. But Industrial Foundation recognized that the PIA is subject to the common 

law and itself adopted a “judge-made” exception to 

disclosure: the right of privacy. Indus. Found., 540 

S.W.2d at 683 (holding that right of privacy 

acknowledged in Billings v. Atkinson was “the type of 

information which the Legislature intended to exempt 

from mandatory disclosure” under the PIA provision 

excepting matters confidential by judicial decision). 

We squarely held in In re Georgetown (a case involving core public information) that “other law” 

included not just statutes and rules, but “judicial decisions.” Georgetown, 53 S.W.3d at 332. To reach that 

holding, we relied on a United States Supreme Court

decision that concluded the phrase “all other law,” by 

itself, “indicates no limitation” and did not allow any 

distinction “between positive enactments and common-law rules of liability.” Norfolk & W. Ry. Co. v. 

Am. Train Dispatchers Ass'n, 499 U.S. 117, 128–29, 

111 S.Ct. 1156, 113 L.Ed.2d 95 (1991), quoted in 

Georgetown, 53 S.W.3d at 333. The concurrence's 

position is not unlike the Georgetown dissent's, a 

position we rejected then. We reject it again today. 

Compare 343 S.W.3d at 124 (suggesting that “ ‘other 

law’ must mean other statutory law where *120 the 

Legislature has declared certain information confidential”), with Georgetown, 53 S.W.3d at 339 (Abbott, J., dissenting) (suggesting that only the Legislature could promulgate laws, so that rules of procedure 

could not be “other law”).

[4] The concurrence argues that because the information itself may not implicate privacy concerns, it 

cannot be protected from disclosure as “expressly 

confidential under other law.” TEX. GOV'T CODE § 

552.022. But information does not exist in a vacuum. 

When disclosure carries with it a serious risk of bodily 

harm, we cannot ignore those consequences when 

deciding whether common law protections apply. Cf. 

U.S. Dep't of State v. Ray, 502 U.S. 164, 177, 112 

S.Ct. 541, 116 L.Ed.2d 526 (1991) (considering retaliatory action that would occur if information was 

disclosed).FN17 Our common law protects individuals 

from physical harm, and, consistent with the PIA, FN18

that protection extends to the disclosure of information that substantially threatens such harm.

FN17. See also Michael Hoefges et al., Privacy Rights Versus FOIA Disclosure Policy: 

The “Uses and Effects” Double Standard in 

Access to Personally–Identifiable Information in Government Records, 12 WM. & 

MARY BILL RTS. J. 1, 7 (2003) (noting that 

“the [Supreme] Court considers derivative 

uses and secondary effects of disclosure on 

the privacy side as a matter of course”).

FN18. TEX. GOV'T CODE § 552.022(a).

III. Are the vouchers confidential under Government Code section 418.176?

Finally, DPS contends the documents are exempt 

from disclosure under Government Code section 

418.176. That statute, passed in 2003,FN19 makes certain information relating to emergency response providers confidential. The law provides, in pertinent

part:

FN19. See Act of June 2, 2003, 78th Leg., 

R.S., ch. 1312, § 3, 2003 Tex. Gen. Laws 

4809, 4813.

Information is confidential if the information is 

collected, assembled, or maintained by or for a 

governmental entity for the purpose of preventing, 

detecting, responding to, or investigating an act of 

terrorism or related criminal activity and:

(1) relates to the staffing requirements of an 

emergency response provider, including a law 

enforcement agency, a fire-fighting agency, or an 

emergency services agency;
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(2) relates to a tactical plan of the provider; or

(3) consists of a list or compilation of pager or 

telephone numbers, including mobile and cellular 

telephone numbers, of the provider.

TEX. GOV'T CODE § 418.176(a).

DPS contends that section 418.176 is “other law” 

making the vouchers confidential. See id. 552.101. 

Cox and Hearst argue that the vouchers do not meet 

section 418.176's requirements and, moreover, that 

DPS waived the issue by failing to raise it in the trial 

court and the court of appeals. Because we are remanding for a new trial, DPS may pursue this argument in the trial court in the first instance. Cf. Kallam 

v. Boyd, 232 S.W.3d 774, 776 (Tex.2007) (deferring 

decision on issue until it had been fully litigated below 

“ ‘so that we will have the benefit of developed arguments on both sides and lower court opinions 

squarely addressing the question’ ” (quoting *121Yee 

v. City of Escondido, 503 U.S. 519, 538, 112 S.Ct. 

1522, 118 L.Ed.2d 153 (1992))).

IV. Conclusion

We reverse the court of appeals' judgment and 

remand the case to the trial court for further proceedings consistent with this opinion. TEX.R.APP. P. 

60.2(d).

Justice WAINWRIGHT delivered a concurring 

opinion, joined by Justice JOHNSON.

Justice MEDINA and Justice WILLETT did not participate in the decision.

Justice WAINWRIGHT, joined by Justice JOHNSON, concurring in the judgment.

The media requested vouchers that detail expenditure of public funds for the governor's security 

detail when he travels. Because it concerns how the

government spends taxpayer monies, the information 

in vouchers is not just “public information” under the 

Public Information Act (PIA), it is “core” public information, with a greater emphasis on disclosure than 

other public information. See TEX. GOV'T CODE § 

552.022(a). The Texas Department of Public Safety 

argues that the information should not be disclosed, 

even though it is core public information, because of 

the risk to the safety of elected officials. There is no 

express exception to disclosure for this core public 

information. This tension resulted in this Court concluding that it may establish judge-made exceptions to 

the PIA's required disclosure of information to the

public, contradicting the unanimous determination in 

our precedent Industrial Foundation of the South v. 

Texas Industrial Accident Board. See 540 S.W.2d 668, 

682 (Tex.1976) (plurality op.) (“We decline to adopt 

an interpretation which would allow the court in its 

discretion to deny disclosure even though there is no 

specific exception provided....”); Id. at 692 (Reavley, 

J., dissenting) (“It was not the intention of the Legislature to turn over the administration of the Open 

Records Act to the judiciary.”). The Court concludes 

that it is “not bound by the Legislature's policy decisions” in deciding common law exceptions to the 

statute, leaving no apparent boundaries on new 

common law exceptions to the legislated disclosure 

requirements in the PIA that courts may now create.

343 S.W.3d 112.

Further complicating the case, the trial court 

made an express finding that “[p]ublic disclosure of 

the information in the vouchers requested by [the 

media representatives] would not put any person in an 

imminent threat of physical danger or create a substantial risk of serious bodily harm from a reasonably 

perceived likely threat.” The Court acknowledges a 

lack of expertise in such matters and credits the law 

enforcement testimony that disclosure of the vouchers 

would create a threat of injury. While I agree with the 

Court's strong desire to keep public officials safe, once 

the Legislature weighed in, the question of keeping

public information from the people is not one for the 

courts. The Court should not judicially create an exception to disclosure that contradicts the Legislature's 

expressed intent in the PIA. I cannot join the Court's 
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opinion, but because I believe that DPS argued, and

the trial court accepted, an exception not allowed by 

law, I would remand in the interests of justice for the 

trial court to consider other exceptions grounded in 

“other law.”

I. Background

The Public Information Act contains a comprehensive scheme arming the public with statutory 

mandates for the government to disclose information

“collected, assembled,*122 or maintained under a law 

or ordinance” or in connection with business by or for 

a governmental body, and it is to be liberally construed to grant requests for information. TEX. GOV'T 

CODE §§ 552.001(b), .002(a). All such information is 

subject to disclosure unless it is either later excepted 

from the definition of “public information” or it falls 

under an exception to disclosure. See id. §§ 

552.101–.151; cf., e.g., TEX. ELEC.CODE § 

13.004(c) (defining certain voter registration information as confidential and not “constitut[ing] public 

information” for purposes of the PIA). “Public information” may be excepted from disclosure under 

Subchapter C, or may be prohibited from disclosure if 

the information is deemed “confidential.” TEX. 

GOV'T CODE §§ 552.007, .101, .352.

There is, however, another level of “public information.” Members of this Court and the Attorney 

General's Office have, in the past, called it “super 

public” information; today the Court calls it “core

public information.” See 343 S.W.3d 112; In re City of 

Georgetown, 53 S.W.3d 328, 341 (Tex.2001) (Abbott, 

J., dissenting); Tex. Att'y Gen. OR2004–7388. This is 

the type of public information at the core of government functions, generally relating to laws actually

enacted, decisions of the judiciary, votes of the Legislature, and how the government spends the people's 

money. See TEX. GOV'T CODE §§ 552.022, .0221, 

.0225. As such, core public information is not subject 

to the routine exclusions in Subchapter C, but may be 

withheld from the public only if the information is

“expressly confidential under other law.” Id. § 

552.022(a). This rule was important enough that the 

Legislature specifically commanded courts to comply

with it. Section 552.022(b) mandates that “[a] court in 

this state may not order a governmental body or an 

officer for public information to withhold from public 

inspection any category of public information described by Subsection (a) or to not produce the category of public information for inspection or duplication, unless the category of information is expressly 

made confidential under other law.” Id. § 552.022(b).

Reporters representing the Austin American–Statesman, San Antonio Express–News, and the 

Houston Chronicle sent requests to DPS officials. One 

reporter requested “travel vouchers for Gov. Rick 

Perry's security detail for all trips out of state during 

two time periods. The first time period is January 

through December 2001. The second time period is 

January through June 2007.” Another requested “access to or copies of travel vouchers for Gov. Rick 

Perry's security detail.” The parties acknowledge that 

these requests include “information in an account, 

voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental 

body.” See id. § 552.022(a)(3). As such, the information requested is core public information. Id. § 

552.022.

II. Disclosure of Core Public Information as “Expressly Confidential Under Other Law”

Compared to the dozens of exceptions for disclosure of “regular” public information, there is only 

one exception to the PIA's mandated disclosure of 

core public information—if it is “expressly confidential under other law.” Id. The text of section 552.022's 

narrow exclusion contains three facial requirements: 

the information must be “confidential,” such designation that the information is confidential must be “express,” and the source of the confidential designation 

must be “other law.” This requirement was put in 

place by a 1999 amendment. See Act of May 25, 1999, 

76th Leg., R.S., ch. 1319, § 5, 1999 Tex. Gen. Laws

4501. Prior to the amendment, *123 section 552.022 
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of the Government Code merely recognized the types 

of information enumerated in section 552.022 were 

“public information.” It recognized that vouchers 

were public information “if the information is not 

otherwise made confidential by law.” Id. But the 

amendment added language to the introductory clause, 

requiring that all types of core public information

enumerated in section 552.022 are public information 

“and not excepted from required disclosure under this 

chapter unless they are expressly confidential under 

other law.” Id.FN1 This 1999 amendment was heralded 

as a “true success” in providing a “citizen ... full and 

complete information regarding official acts of those 

who represent them and the affairs of government.” 

Rick L. Duncan, No More Secrets: How Recent Legislative Changes Will Allow the Public Greater Access 

to Information, 1 TEX. TECH. J. TEX. ADMIN. L. 

115, 133 (2000). We should give effect to all the 

words in a statute, and to changes in the words of 

legislative acts. See Indep. Life Ins. Co. of Am. v. 

Work, 124 Tex. 281, 77 S.W.2d 1036, 1039 (1934). As 

discussed below, the Court's opinion does not, as it 

ignores the “express,” “confidential,” and “other law” 

requirements of the statute.

FN1. Recently, the Texas Legislature 

amended section 552.022's “expressly confidential under other law” provision, and also 

added specific exceptions in the PIA for 

certain confidential information. See generally Act of May 20, 2011, 82nd Leg., R.S. (to 

be codified at TEX. GOV'T CODE chs. 51, 

552). After the effective date, core public 

information may be withheld from disclosure 

if it is “made confidential under this chapter 

or other law.” Id. § 2 (to be codified at TEX. 

GOV'T CODE § 552.022). This amendment 

does not apply to the case at bar, because the 

statute's effective date is September 1, 2011. 

Id. § 41.

A. Other Law

“Other law” means law other than the Public Information Act. City of Georgetown, 53 S.W.3d at 

332–33. I disagree with the Court's assertion that 

“other law” exceptions to disclosure of core public

information can mean “judicial decisions.” 343 

S.W.3d 112. The Court cites as authority for its 

holding the case of In re City of Georgetown, a case in 

which the Court examined whether rules in the Texas

Rules of Civil Procedure regarding attorney-client 

privilege constituted “other law” under section 

552.022. Id. (citing City of Georgetown, 53 S.W.3d at 

332). In City of Georgetown, the Court held that because our enacted rules of court “have the same force 

and effect as statutes,” and the rules were derived from 

previously enacted statutes, such rules constitute 

“other law” under section 552.022. 53 S.W.3d at 332

(quotation omitted). The Court today misreads City of 

Georgetown, asserting that it serves as the basis for 

creating common law exceptions to the PIA. The 

Court cites no other Texas authority for this holding.

Other provisions in the PIA also indicate that judicial decisions should not be “other law” for the 

purpose of the section. See Molinet v. Kimbrell, ––– 

S.W.3d ––––, 2011 WL 182230 (Tex.2011) (noting 

that we examine the “entire act” to glean the meaning 

of a statute's text (citations and quotations omitted)). 

In section 552.101 of the PIA, the Legislature excepted from disclosure information that is “considered 

to be confidential by law, either constitutional, statutory, or by judicial decision.” TEX. GOV'T CODE § 

552.101. This provision applies to “public information” defined and disclosable pursuant to section

552.021, and not to the core public information delineated in section 552.022. If we were to interpret 

“other law” in section 552.022 to include law made 

pursuant to a judicial decision, we would effectively 

apply section 552.101's “judicial decision” exception 

to disclosure to core public information. This *124 is 

contrary to the Legislature's explicit statement that 

core public information is “not excepted from required 

disclosure under this chapter,” including section 

552.101. Id. § 552.022 (emphasis added). The most 

logical reading, then, is that “other law” must mean 
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other statutory law where the Legislature has declared 

certain information confidential,FN2 or rules of court 

drafted by this Court that are commensurate with 

statutes. See City of Georgetown, 53 S.W.3d at 333.

FN2. This is essentially the limited exception 

under the federal Freedom of Information 

Act. See 5 U.S.C. § 552(b)(3) (excluding 

from FOIA's reach “matters that are specifically exempted from disclosure by statute ... 

if that statute ... (i) requires that the matters 

be withheld from the public in such a manner 

as to leave no discretion on the issue; or (ii) 

establishes particular criteria for withholding 

or refers to particular types of matters to be 

withheld; and specifically references § 

552(b), if passed after 2009”).

The Court argues that the “other law” in this case 

is the “individual['s] right to be free from physical 

harm,” as manifested in the tort of battery. 343 S.W.3d 

112. The Court posits that because physical safety is 

“the primary concern of every government,” and the 

PIA protects private information, then it must surely 

protect physical safety as well. Id. at 115 (quoting 

United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 

2095, 95 L.Ed.2d 697 (1987)). The reasoning is a 

sound policy argument in drafting legislation. Elected 

officials should not be subjected to harm by dangerous 

persons whose task may be made easier through public 

information requests. But the policy decision of how 

to satisfy that objective is not ours. The Legislature 

has made nondisclosure of the core public information 

at issue dependent on it being specifically designated 

confidential by rules or statutes outside of the PIA.

Further, this Court has never held that other torts

would protect the disclosure of core public information under section 552.022. In Industrial Foundation of the South v. Texas Industrial Accident Board,

we decided the scope of information protected by 

“judicial decision” under the predecessor to Government Code section 552.101. 540 S.W.2d at 683. This 

is not an interpretation of “other law” under section 

552.022, and, as discussed above, the two provisions 

are not coterminous.

In Industrial Foundation, all members of the 

Court agreed that the scope of the “judicial decision” 

exception did not give the Court a blank check to 

create common law exceptions to the PIA. Id. at 

681–82 (plurality op.). “It was not the intention of the 

Legislature to turn over the administration of the Open 

Records Act to the judiciary.” Id. at 692 (Reavley, J., 

dissenting, joined by Steakley, Pope, and Denton, JJ.); 

see also Tex. Comptroller of Pub. Accounts v. Att'y 

Gen. of Tex., ––– S.W.3d ––––, 2010 WL 4910163 

(Tex.2010) (Wainwright, J., dissenting) (“[C]ourts do 

not have the discretion to classify information as 

confidential on an ad hoc basis; confidentiality of

public information is to be determined by the terms of 

the Act.”). As I discussed in Texas Comptroller, the 

Legislature limited our ability to create judicial exceptions to the PIA. Id. at ––––. Thus, the Legislature's 

definition of the “judicial exception” includes only the 

privacy torts recognized at the time of Industrial 

Foundation. See 540 S.W.2d at 678–81. There was 

one such tort at that time-public disclosure of private 

facts. I would thus limit the scope of the “judicial 

decision” exception to that tort. My fundamental 

concern is the Court's willingness to create common

law exceptions to the comprehensive disclosure 

scheme of the PIA, weakening the PIA in three consecutive opinions interpreting the Act— *125City of 

Dallas v. Abbott, 304 S.W.3d 380, 387 (Tex.2010) 

(extending response periods by governmental entities 

to requests for public information when the request

was unclear), Texas Comptroller, ––– S.W.3d at ––––

(holding dates of birth “confidential” under “judicial 

decision” and excepting them from disclosure under 

the PIA), and this case, DPS v. Cox.

Immediately after the dispute over the disclosure 

of travel vouchers arose, the Legislature considered 

making such voucher information confidential. FN3

But it did not declare vouchers from security details 
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“confidential,” nor did it except these vouchers from 

the definition of “public information” under 

552.022(a). Instead, the Legislature passed what is

currently codified as section 552.151 of the Government Code.

FN4 That section provides:

FN3. Parallel bills in the Texas House and 

Senate during the current legislative session 

attempted to specifically make “a voucher 

submitted or to be submitted under [Chapter 

660 of the Government Code] confidential 

and may not be disclosed under the PIA” if 

the voucher was for expenses incurred in 

protecting an elected official or the official's 

family. H.B. 3131, 82nd Leg. R.S., § 1 (introduced March 10, 2011); S.B.1923, 82nd 

Leg., R.S., § 1 (introduced April 29, 2011). 

Neither bill came to a vote before each bill's 

respective chamber during the regular session. During the special session in June 2011, 

Senate Bill 1 was amended to make vouchers 

or other reimbursement forms confidential 

for a period of eighteen months following the 

date of travel “if the reimbursement or travel 

expense incurred by a peace officer while 

assigned to provide protection for an elected 

official of this state or a member of the 

elected official's family.” S.B. 1, 82nd Leg., 

1st C.S., § 79A.01 (introduced May 31, 

2011). Following the eighteen-month period, 

the vouchers “become subject to disclosure 

under Chapter 552 and are not excepted from 

public disclosure or confidential under that 

chapter or other law,” with seven exceptions, 

including the personal safety exception. Id.

During the eighteen-month period, agencies 

are required to submit expense summaries 

providing specified, detailed information. Id.

The Legislature has provided that this Court 

will have “original and exclusive mandamus 

jurisdiction” over the construction, applicability, or constitutionality of the amendment, 

and the amendment applies only to vouchers 

created on or after September 1, 2011. Id.; 

see also id. § 80. The Governor has not yet 

taken action on the bill.

Because the vouchers at issue in this case 

are not covered by the new section, its interpretation is not before this Court.

FN4. The original enacting legislation added 

the exception as section 552.151. See Act of 

May 31, 2009, 81st Leg., R.S., ch. 283, § 4, 

2009 Tex. Gen. Laws 742, 743 (codified at 

TEX. GOV'T CODE § 552.151). This session, the Legislature redesignated the section 

as section 552.152, effective September 1, 

2011. See Act of May 5, 2011, 82nd Leg., 

R.S., S.B. 1303, § 27.001(20). For the sake of 

clarity, this opinion will refer to the provision 

as presently in force, section 552.151.

Information in the custody of a governmental body 

that relates to an employee or officer of the governmental body is excepted from the requirements 

of Section 552.021 if, under the specific circumstances pertaining to the employee or officer, disclosure of the information would subject the employee or officer to a substantial threat of physical 

harm.

TEX. GOV'T CODE § 552.151 (to be recodified at 

TEX. GOV'T CODE § 552.152). The amendment 

applies only to information to be disclosed pursuant 

to section 552.021, i.e., regular “public information.” It is an exception in Subchapter C, which 

specifically does not apply to core public information, like information in the vouchers at issue in 

this case. The Court argues that the Legislature's 

“swift passage” of section 552.151 of the Government Code “confirms the primacy” of the government's interest in protection against physical harm. 

343 S.W.3d 112. But the Legislature's intent is best 

manifested in what actually becomes law. Molinet,

––– S.W.3d at –––– (“The plain meaning of the text 

is the best expression of legislative intent unless a 
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*126 different meaning is apparent....”). The 

promulgation of section 552.151 demonstrates the 

opposite. Section 552.151 is not an exception to the 

mandated disclosure of core public information. 

The Court's opinion grafts the Legislature's test 

found in section 552.151 onto situations in which 

the Legislature unambiguously did not intend. The 

Court would rewrite section 552.151 to hold that 

such information is “excepted from the requirements of sections 552.021 or 552.022 ” and moves 

the section out of the PIA such that it can be considered “other law.” 343 S.W.3d 112 (emphasis 

added). The Court should not by common law 

override a specific statutory mandate.

B. Confidential

Even if “other law” may include judicial decisions and the common law, section 552.022 requires 

that the “other law” declare the information “confidential.” “Confidential” may have a fluid meaning, 

such as “protected,” “secured,” or “safeguarded.” Cf. 

City of Georgetown, 53 S.W.3d at 334 (“A law does 

not have to use the word ‘confidential’ to expressly 

impose confidentiality.”). The Legislature has enacted 

a plethora of laws that deem certain information 

“confidential” for myriad purposes. See Tex. Comptroller, ––– S.W.3d –––– (Wainwright, J., dissenting) 

(noting that “no fewer than 100 Texas statutes classify 

information as confidential for purposes of the PIA”); 

City of Georgetown, 53 S.W.3d at 339–40 (Abbott, J., 

dissenting) (providing four examples of information

“expressly made confidential” in the Transportation

Code, Education Code, and Family Code). Likewise, 

there are a number of tort actions, both statutory and 

common law, that recognize that certain types of information are private or confidential. FN5 But in every 

instance, the information itself is the issue, and the 

statute, decision, rule, or crime exists to protect the 

information itself or a person who will be directly

harmed by the information's release.

FN5. Examples include trade secrets, privilege, public disclosure of private facts, and 

gag orders during trial. See In re Bass, 113 

S.W.3d 735, 739 (Tex.2003) (defining trade 

secrets); RESTATEMENT (THIRD) OF 

UNFAIR COMPETITION §§ 39, 40, 41

(similarly defining trade secrets and remedies 

available for protection of trade secrets); 

TEX.R. CIV. P. 193.3 (setting standards for 

asserting privileges in discovery); In re E.I. 

DuPont de Nemours & Co., 136 S.W.3d 218, 

222–23 (Tex.2004) (per curiam) (providing 

for mandamus relief for erroneous rulings on 

privileged documents); Indus. Found. of the 

S. v. Tex. Ind. Accident Bd., 540 S.W.2d 668, 

682–83 (Tex.1976) (plurality op.) (discussing the tort of public disclosure of private 

facts); Davenport v. Garcia, 834 S.W.2d 4, 

10 (Tex.1992) (discussing a court's authority 

to issue gag orders).

Once again, the Court creates a judicial exception 

to disclosure of information in the PIA based on a 

possible use of the information rather than the nature 

of the information itself. In Texas Comptroller, the 

Court, for the first time, considered derivative harm 

arising from the release of information—whether 

disclosure of birth dates of public employees, along 

with other information, could be used for identity 

theft. The Court held that such potential tortious use of 

the public information constituted grounds to withhold 

the information because it would constitute a “clearly 

unwarranted invasion of personal privacy.” Tex. 

Comptroller, ––– S.W.3d at ––––. But the courts are 

not “free to balance the public's interest in disclosure 

against the harm resulting to an individual by reason 

of such disclosure.” Indus. Found., 540 S.W.2d at 

681–82 (plurality op.). “This policy determination was 

made by the Legislature when it enacted the statute.” 

Id. at 682. The Legislature granted the people's right to 

the information after considering*127 its potential 

uses and harms. The Court, apparently believing the

Legislature did not sufficiently execute its task, finds a 

new common law exception to disclosure based on its

own views of harm in the potential use of, on this 
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occasion, core public information.

In Texas Comptroller, as here, the Court did not 

restrict itself to considering whether the actual release 

of the information (state employees' birth dates) was 

harmful, but rather whether, in the wrong hands and in 

combination with other information, such as Social 

Security numbers, state employees might be at higher 

risk for identity theft. Tex. Comptroller, –––S.W.3d 

––––. The harm was derivative, and the analysis allowed for post-hoc, judicially created exceptions to 

disclosure. For the same reasons as in Texas Comptroller, I believe the Court's analysis and application 

of derivative harm to create an exception to disclosure 

is inappropriate, particularly so because of the core 

public nature of the information at issue, and because 

the Court's rule could permit unfettered judicial discretion in declaring any information not subject to

disclosure. Its discovery of this common law right 

may even inadvertently have the effect of creating 

some common law cause of action for “wrongful 

disclosure of information,” and may have the potential 

to randomly and unnecessarily subject various government agencies and officers to criminal liability for 

simply disclosing what the Legislature determined, 

and the Court admits, is core public information. See

TEX. GOV'T CODE § 552.352 (defining the misdemeanor crime of distribution of information “considered confidential under the terms of this chapter”).

C. Expressly

Even if our common law torts are “other law,” 

and even if, somehow, the threat of the tort of battery 

declares some unknown information “confidential,” 

the final requirement of section 552.022 is that the 

“other law” must “expressly” make the information 

“confidential.” The Court does not address how it 

believes that the information at issue here is “expressly” confidential. Merriam–Webster's dictionary

defines “express” as “directly, firmly, and explicitly 

stated.” MERRIAM–WEBSTER DICTIONARY, 

available at http:// www. merriam- webster. com/ 

dictionary/ express (last visited June 21, 2011). The 

tort of battery is when a person “(a) ... acts intending to 

cause a harmful or offensive contact with the person of 

the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with 

the person of the other directly or indirectly results.” 

RESTATEMENT (SECOND) OF TORTS § 13 

(1965); see also Bailey v. C.S., 12 S.W.3d 159, 162 

(Tex.App.-Dallas 2000, no pet.) (“A person commits a 

battery if he intentionally or knowingly causes physical contact with another when he knows or should 

reasonably believe the other person will regard the

contact as offensive or provocative.”). Nowhere in the 

tort's elements, or in any of our cases, is it “directly, 

firmly, and explicitly stated” that battery protects 

information from disclosure. The tort concerns 

harmful or offensive intentional contact. The Court

ignores this critical requirement of the statute limiting 

a court's ability to protect information from disclosure.

Simply put, common law battery is not “other 

law” under which the information at issue here is 

“expressly confidential.” The Court oversteps legislated limits recognized in Industrial Foundation to 

interpret exceptions to disclosure under the PIA. For 

this reason, I do not join in the Court's opinion.

*128 III. Remand Is Appropriate

Although I cannot join the Court's opinion, I join 

its judgment that remand is appropriate. I believe 

DPS's and the trial court's improper reliance on the 

“special circumstances” exception, and the possibility 

of harm to public officials, warrants a remand in the 

interests of justice. I also believe that DPS should have 

the opportunity to argue that a specific exception to 

disclosure made by the Homeland Security Act should

apply.

The Court relies on and builds upon the Attorney 

General's “special circumstances” test, which the 

Attorney General has applied numerous times in various letter rulings, in support of its holding today. 

However, this test, and its rulings, do not apply to the 

information at issue here nor to the legal theory upon 
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which the Court relies in withholding the information.

The genesis of the test is a one-page letter ruling

from 1974, that was later expanded in 1977. It was not 

a freestanding test to withhold information, but rather 

was used in determining whether information could be 

withheld as a “clearly unwarranted invasion of personal privacy,” a separate, statutory exception to disclosure of non-core public information in the Act. Tex. 

Att'y Gen. ORD–54 (1974); Tex. Att'y Gen. 

ORD–169 (1977); see also TEX. GOV'T CODE § 

552.102 (providing an exception for regular “public” 

information for information in a personnel file, “the 

disclosure of which would constitute a clearly unwarranted invasion of personal privacy”). In other 

words, the attorney general examined “special circumstances,” such as an employee's specific history of 

being threatened, harassed, or stalked, to see if information in a state employee's personnel file should 

not be disclosed under what is now section 552.102 of 

the PIA. Rather than protecting more information 

from disclosure, the “special circumstances” test, as 

initially articulated by the attorney general, actually 

required more information to be disclosed, because 

only if the “special circumstances” existed could an 

employee's personnel information (including his or 

her home address, phone number, and other personal 

information) be withheld. Tex. Att'y Gen. ORD–54 

(1974); Tex. Att'y Gen. ORD–169 (1977).

In later attorney general opinions, though, the 

“special circumstances” test was not discussed in 

conjunction with section 552.102's “clearly unwarranted invasion of personal privacy” in employees' 

personnel files, but rather as a privacy exception or 

“other judicial decision” under section 552.101. See, 

e.g., Tex. Att'y Gen. OR2004–10845. No party extensively discussed the evolution of this test in the 

attorney general's office from 1977 until today. 

However, it appears that the attorney general's basis 

for applying the “special circumstances” test to information not subject to disclosure was based on the 

application of the tort of public disclosure of private 

facts (discussed in Industrial Foundation and analyzed under the employment file exception, predecessor to section 552.102) as another “judicial decision” excluding information pursuant to section 

552.101.

It also appears that the Attorney General has determined that section 5 52. 101 is “other law” for the 

purpose of deciding whether core public information

can be withheld. I agree that the tort of public disclosure of private facts may be a “judicial decision,” 

as it was extant at the time the PIA was promulgated, 

that could be the basis of an exclusion from disclosure 

under section 552.101 and may also be “other law” by 

which core public information is “expressly confidential” under section 552.022. However, section 

552.101, in and of itself, cannot be “other law” to 

withhold core public information. To enact such a rule 

would thwart the Legislature's*129 expressed intent 

that core public information is not subject to the 

Subchapter C exceptions, including section 552.101. 

This is further evidenced by the fact that the Legislature's new “special circumstances” exception, which

appears to be similar to the Attorney General's 

so-called common law privacy “special circumstances” exception, is in Subchapter C, thus currently applying to “public information” but not core public 

information that must be disclosed pursuant to section 

552.022. Therefore, the Attorney General's “special 

circumstances” exception should not apply to the 

information here.

The Attorney General's “special circumstances” 

test cannot apply in this situation. However, because 

the use of the test as an independent basis for withholding information was reasonably well established

in a number of attorney general letter rulings for a 

number of years, because DPS and the trial court 

erroneously relied upon the test, and because of the 

serious personal safety concerns at issue in this case, I 

would remand in the interest of justice to allow DPS to 

argue any and all exceptions that are based on “other 

law,” such as one based on Government Code section 
Page 18

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428

(Cite as: 343 S.W.3d 112)

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

418.176, the exception from the Homeland Security 

Act. See TEX.R.APP. P. 60.3; Low v. Henry, 221 

S.W.3d 609, 621 (Tex.2007) (remanding “to allow the 

parties to present evidence responsive to [the Court's] 

new guidelines”).

On remand, the trial court should consider 

whether specific information in the vouchers raises

serious security concerns and should be redacted. For 

example, in the sample submitted in camera to the 

Court, one cannot only identify at which specific 

hotels the Governor's security detail stayed and, inferentially, whether they stayed in the same hotel as 

the Governor, but also when the members of the detail 

arrived and departed from the foreign country. Other 

information in the vouchers, such as total amounts 

spent for lodging or costs of meals, may not present 

the same security concerns. The trial court should 

carefully consider the varying levels of concern for the 

different types of information in the vouchers.

IV. Conclusion

There is legitimate concern about fashioning a 

rule that could allow those who want to do harm to 

government officials to gain information to help them 

do so through the government's own records. The rule 

the Court announces today—that it can fashion 

common law exceptions to disclosure of core public 

information—is based on a genuine concern to protect 

our public officials from physical harm and acts of

terrorism, but it thwarts the Legislature's clear statement that it, not the courts, grants exceptions to the 

public's access to public information. There are many 

statutes and rules that make information “expressly

confidential,” but the judge-made tort of battery is not 

one, and we should guard against any court creating

reasons to keep government information from its 

citizens. That policy-laden task, as emphasized in 

Industrial Foundation, belongs to the Legislature. 

Because the Court's rule opens the door to new judicially created exceptions to disclosure of core public 

information and weakens what was one of the 

strongest, most robust freedom of information statutes 

in the nation,FN6 I respectfully cannot join the Court's 

opinion. But because I believe remand in the interest 

of justice is appropriate, I join the Court's judgment.

FN6. See City of Dallas, 304 S.W.3d at 395 

n. 5 (Wainwright, J., dissenting) (citing 151 

Cong. Rec. S1525–26 (Feb. 16, 2005) 

(statement of Senator John Cornyn)).

Tex.,2011.

Texas Dept. of Public Safety v. Cox Texas Newspapers, L.P.

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup.

Ct. J. 1428

END OF DOCUMENT