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 REPLY 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

6920036

THIRD COURT OF APPEALS

AUSTIN, TEXAS

9/14/2015 5:37:53 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 9/14/2015 5:37:53 PM JEFFREY D. KYLE Clerk
i 

TABLE OF CONTENTS

Index Of Authorities ................................................................................ iii 

Introduction ............................................................................................... 1 

Argument ................................................................................................... 3

I. Plaintiffs’ Defense Of The District Court Is Founded On 

Erroneous Assumptions And Flawed Predicates. .................. 3

A. Plaintiffs Misunderstand Cox And Advocate An 

Erroneous Standard For The Physical-Safety 

Exception. ....................................................................... 5

1. Cox Addresses Requests For Disclosure Of 

Specific Information; There Is No All-OrNothing Disclosure Scenario. ............................... 5

2. Cox Does Not Require An Actual Threat Or 

Plot To Commit A Violent Act. ............................. 9

3. Cox Requires Deference To LawEnforcement Assessments Of The 

Probability Of Harm. .......................................... 10

B. Plaintiffs’ Invocation Of Past Attorney General 

Opinions Is Unavailing. ............................................... 13

C. Plaintiffs’ Arguments Are Not Improved By Their 

Brief’s Erroneous Characterization Of TDCJ’s 

Motives. ........................................................................ 15

D. Plaintiffs’ Mistaken View Of The Physical-Safety 

Exception Infects Their Expert’s Opinion. .................. 17

II. Plaintiffs Offer No Meaningful Response To The Need

For A Remand In The Event The Court Determines 

TDCJ Is Not Entitled To Summary Judgment. ................... 19
ii 

Prayer ...................................................................................................... 19

Certificate of Service ............................................................................... 21

Certificate of Compliance ........................................................................ 22
iii 

INDEX OF AUTHORITIES

Cases

Boeing Corp. v. Paxton, 

No. 12-1007, 2015 WL 3854264 (Tex. June 19, 2015) ......... 2, 16, 17 

Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers L.P., 

343 S.W.3d 112 (Tex. 2011) ...................................... 2, 6, 7, 8, 10, 11 

Other Authorities

Tex. Att’y Gen. ORD-673 (2001) ............................................................. 13 

 
INTRODUCTION

Plaintiffs mistakenly label the issues in this case as “‘small’” 

because a new amendment to the Texas Public Information Act (PIA) 

prospectively exempts from future disclosure information revealing the 

identity of execution-drug providers. Plaintiffs’ Br. 44. That label merely 

begs the ultimate question: does a legitimate public-safety concern over 

the release of a small portion of the requested information permit TDCJ 

to withhold only that portion of the information—the supplier’s 

identity—while releasing every other shred of requested information? 

The ramifications of the district court’s erroneous ruling, in any event, 

will be anything but “small,” because the standard governing when and 

how a government agency can withhold sensitive information remains at 

issue. 

Plaintiffs posit a standard for the physical-safety exception that 

distorts the PIA’s balance of public safety and access to information. 

According to Plaintiffs, the public’s right to information demands that 

sensitive information cannot be withheld due to legitimate concerns 

about physical harm, absent an actual identified threat or plot to commit 

a violent act. While there is no dispute that public access to information 
2 

is important, that interest must give way to public safety where DPS or 

other law enforcement has ample grounds to believe a threat to public 

safety exists. That Plaintiffs’ standard would distort the PIA balance is 

demonstrated by a recent decision in which the Texas Supreme Court 

held that information implicating third-party privacy or property 

interests may be withheld from public disclosure if disclosure would do 

no more than “give advantage to a [business] competitor.” Boeing Corp. 

v. Paxton, No. 12-1007, 2015 WL 3854264, at *7 (Tex. June 19, 2015). 

Plaintiffs advocate a disclosure standard that does not reflect current 

PIA jurisprudence. 

Neutral law-enforcement warnings about a specific public-safety 

threat should not be subject to a battle of the experts in PIA cases, as 

Plaintiffs’ advocate. That would leave the public’s safety hanging in the 

balance. So long as law enforcement’s concerns relate to specific pieces 

of requested information, and are not merely “vague assertions of risk,” 

they should be heeded. Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers 

L.P., 343 S.W.3d 112, 119 (Tex. 2011). 

Notwithstanding Plaintiffs’ implications to the contrary, this is a 

very important appeal that implicates serious public-safety concerns. The 
3 

circumstances of this case—as well as inevitable future scenarios 

involving PIA requests for information that, if released, would foster a 

substantial risk of physical harm—call for the Court to reverse the 

district court and clarify the physical-safety exception. 

ARGUMENT

I. PLAINTIFFS’ DEFENSE OF THE DISTRICT COURT IS FOUNDED ON 

ERRONEOUS ASSUMPTIONS AND FLAWED PREDICATES. 

Plaintiffs’ brief is founded on a series of invalid assumptions and 

predicates, which Plaintiffs use to set up and knock down arguments that 

do not accurately reflect either TDCJ’s position or the contours of the 

physical-safety-exception as outlined in Cox. Under a faithful application 

of Cox, TDCJ satisfied the physical-safety exception, as a matter of law. 

See TDCJ Br. 31-47. 

This appeal cannot hinge on three pieces of evidence that must 

demonstrate on their own an actual threat or plot to commit a violent act 

against a compounding pharmacy, as Plaintiffs contend. See Plaintiffs’ 

Br. 18-26. What the evidence should do—and does—is demonstrate that 

the release of requested information entails a substantial threat of 

physical harm. The evidence does that here because it includes a 

legitimate law-enforcement safety concern about possible violence that is 
4 

connected by evidence to the release of specific information. The evidence 

that achieves that result is far more robust than is required, and it 

includes: 

• a firestorm of hate mail to the Woodlands pharmacy after its 

identity was revealed as a supplier of execution drugs; 

• the exploding-head blog posting, which juxtaposes a violent 

graphic with text identifying a compounding pharmacist; 

• testimony from Director Livingston expressing long-standing 

safety concerns at TDCJ about compounding pharmacies that 

supply execution drugs; 

• Livingston’s testimony about the recent escalation of threats 

of harm in connection with executions, and about increased 

dangers in the overall criminal-justice environment; 

• the law-enforcement response to the firestorm surrounding 

the Woodlands pharmacy, which included dispatching officers 

to ensure protests were not violent; 

• the Humez email, which (among other things) notes the 

obvious danger of violence and connects it to the revelation of 

the pharmacy’s identity; 

• the FBI considered the threat environment at the Woodlands 

pharmacy serious enough to investigate Humez; 

• Director Livingston considered the Humez email an actual 

threat; 

• Director of DPS McCraw’s testimony, including that the 

fervor surrounding the death penalty warns of possible 

violence; 

• testimony from McCraw about the vulnerability of the 

compounding pharmacy; 

• testimony from McCraw explaining that acts of violence are 

not necessarily preceded by actual threats; 

• testimony from Cunningham about policy issues that invoke 

passion, and comparing anti-death-penalty advocates to prolife and animal-rights groups; 

• testimony from Cunningham about violence in connection 

with prison issues as well as the Internet’s tendency to 
5 

increase the fervor surrounding a topic and access to methods 

and materials for those intent on violence; 

• testimony from Cunningham confirming that acts of violence 

are not necessarily preceded by actual threats or warnings; 

TDCJ Br. 3-11, 31-47. 

A. Plaintiffs Misunderstand Cox And Advocate An 

Erroneous Standard For The Physical-Safety 

Exception. 

As discussed in TDCJ’s opening brief and confirmed by Plaintiffs’ 

response brief, Plaintiffs’ arguments misunderstand Cox and the 

physical-safety exception. See id. 47-51. 

1. Cox Addresses Requests For Disclosure Of 

Specific Information; There Is No All-Or-Nothing 

Disclosure Scenario. 

Cox does not mandate an all-or-nothing disclosure standard under 

which all information on a given topic is either subject to disclosure or 

may be withheld. Plaintiffs, however, argue as though the physicalsafety exception is an all-or-nothing inquiry. If there is no specific, 

verifiable threat of violence, Plaintiffs argue, there can be no substantial 

threat of physical harm.1

 

1 See e.g., Plaintiffs’ Br. vii (arguing, “no history or actual violence against a supplier 

of Lethal Injection Drugs has ever occurred or been threatened”); id. at 4 (arguing, 

“there has never been any violence, threat or physical harm against any supplier of 

[execution drugs] in Texas”); id. at 6 (arguing, “no evidence that once the Woodlands’ 

identity became public that there was ever any physical harm or any risk of physical 

harm (substantial or otherwise) against the pharmacy”), id. (noting, “no evidence in 
6 

Plaintiffs misread Cox, which requires courts to “closely examine” 

each piece of requested information to determine whether disclosing it 

would substantially threaten physical harm. Cox, 343 S.W.3d at 118-19. 

Plaintiffs, in contrast, focus on select evidence and ask if that evidence 

amounts to an actual threat to commit violence; only if it does would 

Plaintiffs apparently then concede the information (presumably, all 

information) could be withheld. See Plaintiffs’ Br. 18-25; see also note 1 

supra. Plaintiffs’ argument is particularly misguided given that TDCJ 

has released all requested information except information identifying the 

compounding pharmacy and pharmacist. TDCJ has not announced a 

policy refusing to disclose anything on the topic of executions. Yet 

Plaintiffs’ briefing gives that impression. 

 

the record that any violence or threats occurred during an October 9, 2013, vigil”); id. 

at 9 (arguing, “the documents upon which TDCJ and DPS rely do not contain any 

discernible direct threats or any readily identifiable targeted threats against any 

pharmacies or individuals connected to them or to the TDCJ (quotation marks 

omitted)); id. at 9 (arguing that the exploding-head blog has no “wording [that] could 

be loosely interpreted as threatening” (quotation marks omitted)); id. at 10 (arguing 

Humez “did not make any actual threats” (quotation marks omitted)); id. at 16 

(“There must be an actual, substantial threat of physical harm . . . .”); id. at 17 (“[T]he 

[substantial threat of physical harm] must be based upon some past conduct that 

legitimately leads to the conclusion of an actual substantial threat of actual physical 

harm.”); id. at 30 n.9 (arguing there is not substantial threat of physical harm to 

President Obama because a particular Internet posting was harmless); id. at 39 

(indicating that TDCJ’s arguments fall short because they do not “establish[] any 

kind of actual violence”). 
7 

Cox explains that “[t]he dividing line between disclosure and 

restraint must be determined by proof” in the form of “detailed evidence 

or expert testimony” connecting law enforcement’s safety concerns with 

specific requested information. Cox, 343 S.W.3d at 119. It is erroneous 

to argue, as Plaintiffs’ brief repeatedly does, that there can be no 

substantial threat of physical harm (presumably for all purposes) simply 

because TDCJ does not point to an existing plot to commit a violent act 

at a compounding pharmacy. See note 1 supra. It is equally erroneous 

to require a past plot or act of violence. See Plaintiffs’ Br. 17 (“[T]he 

[substantial threat of physical harm] must be based upon some past 

conduct that legitimately leads to the conclusion of an actual substantial 

threat of actual physical harm.”); id. at 30 n.9 (arguing no substantial 

threat of physical harm to President Obama because a particular 

Internet posting was harmless). Indeed, an assessment of the probability 

of harm, as contemplated by Cox, would be of little use if it could only be 

invoked after an actual existing threat or plot was known. 

An example from Plaintiffs’ brief illustrates this pervasive error. 

Plaintiffs raise an incident that occurred after Osama bin Laden was 

killed and a troubling online posting noted, “I hope President Obama has 
8 

beefed up security so he can be protected if anyone comes after him.” Id. 

Because an investigation revealed the posting was made by a harmless 

middle-school child, Plaintiffs announce the (largely irrelevant) 

conclusion that the posting itself was not a substantial threat of physical 

harm. See id. 

The conclusion Plaintiffs’ draw from their Obama example 

demonstrates the depth of their misunderstanding. If law enforcement 

expressed concern that the President’s life was at significant risk 

following the bin Laden raid, then a request for information revealing 

specific details about the President’s security arrangements should fall 

within the physical-safety exception as a matter of law. Cox, 343 S.W.3d 

at 118-19 (finding that specific information about “the number of guards 

protecting the governor” qualified for the exception because it could give 

a potential and as-yet unidentified person who might be “intent on 

harming” the governor “the means to accomplish that goal”). Plaintiffs’ 

formulation of the exception, however, apparently would not permit that 

result. See Plaintiffs’ Br. 30 & n.9 (arguing that the proper inquiry is 

whether any “bit of information” “is an actual threat” and concluding that 

the child’s post “was not a STPH [substantial threat of physical harm].”). 
9 

Likewise, in this case there is ample evidence specifically 

connecting the single item of requested information to law enforcement’s 

concerns about violence. Whether there is, for example, an actual bomb 

threat or currently existing plot against a provider of execution drugs 

cannot be the sole issue. TDCJ has demonstrated through evidence how 

law enforcement’s assessment of a high-threat environment is connected 

to the disclosure of the identity of the supplier of pentobarbital. See 

TDCJ Br. 31-47. The physical safety exception, as explained in Cox, is 

therefore satisfied. See TDCJ Br. 31-47. 

2. Cox Does Not Require An Actual Threat Or Plot To 

Commit A Violent Act. 

Cox explains—contrary to Plaintiffs’ arguments—that the threat of 

physical harm arises from the disclosure of specific information; Cox does 

not provide, as Plaintiffs advocate, a standard for determining whether 

or not there is an actual threat or plot to commit a violent act. Cox also 

does not require proof of an actual threat or plot to commit physical 

violence as a prerequisite to shielding specific information from 

disclosure. It does not require evidence that such a threat is likely or 

even that violence is likely. Nor does it require evidence of a past incident 

of violence by a particular person or group. 
10 

Cox requires a substantial threat of physical harm, which can be 

demonstrated through a DPS or other law-enforcement expert’s 

assessment of the probability of harm, as well as expert testimony or 

other evidence that shows how the release of specific information 

implicates that assessment of harm or otherwise shows a substantial 

threat of physical harm. TDCJ has met that burden. See TDCJ Br. 31-

47. 

3. Cox Requires Deference To Law-Enforcement 

Assessments Of The Probability Of Harm. 

Plaintiffs’ brief essentially ignores that the “probability of harm” in 

a given circumstance is best assessed by “law enforcement experts” or 

“DPS,” and that law-enforcement assessments on that topic must receive 

deference from courts. Cox, 343 S.W.3d at 119. In a sense, Plaintiffs 

argue that because TDCJ has not pointed to a specific violent act or 

existing plot to commit one at a compounding pharmacy, there never will 

be one. Plaintiffs rail against deferring to law enforcement warnings 

about public-safety threats because they disagree with DPS’s 

assessment. But that these plaintiffs disagree with DPS’s assessment of 

an unacceptably high probability of harm cannot change the fact that, 

under Cox, that determination is for DPS to make. 
11 

Cox does not contemplate a “battle of experts” in every case to 

resolve the precise degree of probability of harm presented by a given 

situation. Instead, Cox requires that “a certain amount of deference must 

be afforded DPS officers,” unless their warnings are mere “vague 

assertions of risk.” Id. And as already discussed in the opening brief, the 

assessments from DPS and law-enforcement experts in this case 

supporting withholding the requested information are no mere “vague 

assertions of risk.” See TDCJ Br. 38-47. 

Cox does not demand that a law-enforcement assessment of the 

probability of harm take on the form of a full-blown expert opinion, or 

qualify under Plaintiffs’ expert’s definition of a “threat assessment.” See 

Plaintiffs’ Br. 31-36 (arguing that an assessment of the probability of 

harm must take on a particular form, as outlined by Plaintiffs’ expert 

Parker). True, Cox anticipates the physical-safety exception could be

established through expert testimony. Cox, 343 S.W3d at 119. But it 

also envisions the exception could be established through other evidence. 

Id. Moreover, there is no indication in the Cox opinion or the Cox record 

on appeal that any expert testimony was presented at all until after the 
12 

case was remanded by the Supreme Court; DPS officials testified at the 

initial Cox trial, but not as expert witnesses.2 

A law-enforcement assessment, especially from DPS, should be 

treated like an agency determination entitled to deference. See TDCJ Br. 

26. Cox would not have spoken of “deference” to DPS if the Court really 

intended to set up a battle of experts. Choosing between competing 

expert testimony is the opposite of deference. Accordingly, there is no 

place in Cox for judges to act as security officers. 

Putting these principles into practice and returning to the Obama 

example above, a law-enforcement assessment that disclosure of 

information about the President’s schedule would present an 

unacceptably high “probability of harm” “must be afforded” deference. Id. 

If such an assessment were presented in response to a request for 

 

2 The relevant record for these purposes is the record that was before the Texas 

Supreme Court when it decided Cox, not the record from subsequent remanded 

proceedings in which DPS went beyond what is required (as it did in this case) by 

proffering expert opinions on the probability of harm and the threat to public safety 

from disclosure of requested information. 

For much the same reason, Plaintiffs’ reference to the post-remand Cox record 

does nothing to support its arguments in this case. See Plaintiffs’ Br. 18 (invoking 

the Cox record from post-remand proceedings that supported withholding all 

requested information, not merely a portion of the requested information as is the 

case here), 39 (same).
13 

disclosure, then disclosure would turn on evidence demonstrating the 

effect that any disclosure would have on the secrecy of the President’s 

schedule. Plaintiffs surely would not argue that in such a scenario the 

law-enforcement assessment should be susceptible to a battle of the 

experts. The Court should correct the district court’s acceptance of an 

unworkable legal standard under which such a battle will occur in every 

physical-safety-exception case. 

B. Plaintiffs’ Invocation Of Past Attorney General 

Opinions Is Unavailing. 

Although Plaintiffs do not make any meaningful argument based 

on past Attorney General Opinions, they nonetheless refer to several past 

informal letter rulings to support a contention that the underlying 

Attorney General opinion here “was a bit of an about-face.” Plaintiffs’ Br. 

2. The Court need not be side-tracked by Plaintiffs’ reference to these 

letter rulings; the letter rulings do not support Plaintiffs’ arguments and, 

in any event, are not precedential. See Tex. Att’y Gen. ORD-673 (2001) 

(describing the difference between a nonprecedential informal letter 

ruling and a prior Attorney General determination).

Plaintiffs begin with informal letter ruling OR-17507 (2010), which 

did not involve the physical-safety exception. See Plaintiffs’ Br. 3. Cox
14 

first announced the exception over half a year after OR-17507 was issued. 

Letter ruling OR2010-17507 is not relevant here. 

Next, Plaintiffs invoke informal letter ruling OR-10208 (2012), 

which was issued after Cox and involved a terse discussion of the “new 

standard.” Id. Rejecting application of the physical-safety exception, the 

letter ruling noted that TDCJ sought the exception based solely on a 

belief that “harassment” of execution-drug suppliers “could escalate into 

violence.” Id. Here, in contrast, TDCJ has fulfilled Cox’s requirements 

by securing a DPS assessment of the probability of harm, providing two 

expert opinions on the probability of harm, and connecting the disclosure 

of the requested information with the unacceptably high probability of 

harm identified by law-enforcement experts. Further, OR-10208 states 

that it “is limited to the particular information at issue in this request 

and limited to the facts presented to us; therefore, this ruling must not 

be relied upon as a previous determination regarding any other 

information, or any other circumstances.” Id. at 4. Texas Attorney 

General Opinion OR-10208 (2012) is therefore also of no assistance to 

Plaintiffs. 
15 

C. Plaintiffs’ Arguments Are Not Improved By Their 

Brief’s Erroneous Characterization Of TDCJ’s Motives. 

Plaintiffs brief incorrectly accuses TDCJ of seeking to withhold the 

identity of the compounding pharmacy and pharmacist under the 

physical-safety exception because “suppliers will stop selling these drugs 

to TDCJ if their identities are known.” Plaintiffs’ Br. vi; see also, e.g., id. 

at vii (ascribing to TDCJ a motivation to invoke the exception out of 

“general concerns that LID [execution-drug] suppliers might not continue 

to sell to TDCJ if they got bad publicity”); id. at 16 (implying that TDCJ 

invokes a substantial-threat-of-lost-business exception). These 

accusations are incorrect and, in any event, do not advance Plaintiffs’ 

arguments. 

TDCJ invoked the physical-safety exception out of concern for 

public safety.3 It is not TDCJ’s position that the physical-safety exception 

shields information from disclosure because disclosure might have an 

 

3 CR.552 (“The department seeks to withhold the identifying information of the 

pharmacy and pharmacist who provide the drugs used in executions and other 

information relating to the provision of said drugs because release of the information 

would jeopardize the safety of the persons associated with the pharmacy.”); 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.639-40, 701-06 (testimony 

from Livingston regarding concern for public safety should the identity of the 

pharmacy be disclosed). 
16 

adverse effect on a company doing business with TDCJ, or because 

disclosure would make obtaining execution drugs more difficult for 

TDCJ. 

Even if TDCJ were to seek protection of compounding-pharmacy 

information for economic reasons like those ascribed to TDCJ by 

Plaintiffs, there is a strong likelihood the information would in fact be 

withheld from disclosure. The Texas Supreme Court recently clarified in 

Boeing that even core-public information may be withheld from 

disclosure when it is information implicating the “privacy and property 

interests of a private party” (here, the pharmacy) and disclosure of the 

information “would give advantage to a competitor” of the private party. 

Boeing, 2015 WL 3854264, at *7 (internal quotation marks omitted). 

Thus, the Texas Supreme Court has already indicated that government 

agencies (or private parties) may shield information from disclosure 

under the PIA for economic or privacy reasons, and the showing required 

to do so is hardly onerous. Cf. Plaintiffs’ Br. 16 (arguing, the “Supreme 

Court’s formulation of the [physical-safety] standard is intentionally high 

because we are dealing with an exception to core public information.”). 

Given that the physical-safety exception was introduced into the PIA’s 
17 

scheme by the Texas Supreme Court, and given Boeing interpreted the 

PIA to shield third-party information from disclosure by showing merely 

that disclosure “would give advantage to a competitor,” Boeing, 2015 WL 

3854264, at *7 (quotation marks omitted), *9, Plaintiffs’ (erroneous) 

assertions about TDCJ’s supposed motivations for withholding the 

requested information are out of touch with current PIA jurisprudence 

and do not assist their arguments. 

D. Plaintiffs’ Mistaken View Of The Physical-Safety 

Exception Infects Their Expert’s Opinion. 

The opinion of Plaintiffs’ expert, Parker, should not have been 

considered at all, as discussed in TDCJ’s opening brief. See TDCJ Br. 51-

58. Moreover, Plaintiffs’ erroneous view of Cox and its standard taint 

Parker’s opinion and testimony because Parker’s inquiry mirrors 

Plaintiffs’ misunderstanding of Cox. Parker was concerned only with 

determining whether the evidence he reviewed demonstrated an actual 

threat to commit a violent act against an execution drug provider, and 

whether Cunningham and McCraw (TDCJ’s experts) did all Parker felt 

necessary to make that same (inappropriate) determination. Parker did 

not, therefore, independently inquire into whether disclosing information 
18 

(and, in particular, information identifying the compounding pharmacy) 

presents an unacceptably high probability of harm. See id. 54-56. 

The defense of Parker’s opinion in Plaintiffs’ brief only highlights 

Parker’s inappropriate inquiry because it stresses that he was answering 

the wrong question. Thus, Plaintiffs’ brief merely emphasizes: 

• “the documents upon which TDCJ and DPS rely do not contain any 

discernible direct threats or any readily identifiable targeted 

threats against any pharmacies or individuals connected to them or 

to the TDCJ,” Plaintiffs’ Br. 9 (quotation marks omitted), 34; 

• “the messages and reviews about the Woodlands Pharmacy” were 

not threats and only “amount to ‘criticisms’ of the pharmacy,” id

at 9; 

• the exploding-head blog posting contained “no wording that could 

be loosely interpreted as threatening to the subject pharmacies or 

to anyone else, id. at 34 (quotation marks omitted), see also id. at 9; 

• Plaintiffs’ belief that expert testimony is needed to establish “what 

a ‘threat assessment” is in law enforcement parlance,” id. at 31; 

• “[a] ‘threat assessment’ is an investigation . . . to determine if a 

threat made to a person is a viable threat,” id. at 32; 

• “no true ‘threat assessment’ was ever performed by TDCJ”; id. at 

10, 35; 

• Parker’s belief that a threat assessment for purpose of the physicalsafety exception requires speaking to or confronting a person 

making an actual threat of violence; id.at 32; 

• Parker’s belief that it was “unlikely that [Humez] intended to 

commit any violence himself,” id. at 25; 

• Parker’s belief that Humez “did not actually make any threats,” id. 

at 10; 

Parker’s opinion and testimony not only should never have been 

considered, they also involved the wrong inquiry. See TDCJ Br. 51-56. 
19 

II. PLAINTIFFS OFFER NO MEANINGFUL RESPONSE TO THE NEED 

FOR A REMAND IN THE EVENT THE COURT DETERMINES TDCJ IS 

NOT ENTITLED TO SUMMARY JUDGMENT. 

TDCJ’s opening brief discussed TDCJ’s alternative request for a 

remand even if the Court determines that TDCJ is not entitled to 

summary judgment. Plaintiffs’ brief offers no meaningful response. 

Accordingly, because Plaintiffs, at most, could only raise a genuine issue 

of disputed fact regarding the applicability of the physical-safety 

exception, the portion of the district court’s order granting Plaintiffs’ 

summary-judgment motion should be reversed and the case remanded 

for trial, in the event the Court does not render judgment for TDCJ. 

PRAYER

The Court should reverse the district court and render judgment for 

TDCJ or, in the alternative, remand the case for trial on the merits. 

 
20 

Respectfully submitted. 

Dated: September 14, 2015 

KEN PAXTON

Attorney General of Texas 

CHARLES E. ROY

First Assistant Attorney General 

 

SCOTT KELLER

Solicitor General 

/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
21 

CERTIFICATE OF SERVICE

 I hereby certify that on this the 14th day of September, 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 
22 

CERTIFICATE OF COMPLIANCE

 In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this 

brief contains 3,970 words, excluding the portions of the brief exempted 

by Rule 9.4(i)(1). 

/s/ Richard B. Farrer 

Assistant Solicitor General