No. 03-15-00044-CV



## In the Court of Appeals for the Third Judicial District Austin, Texas

T EXAS D EPARTMENT OF C RIMINAL J USTICE , Appellant , v. M AURIE L EVIN , N AOMI T ERR , AND H ILARY S HEARD , Appellees

. On Appeal from the 201st Judicial District Court of Travis County, Texas

A PPELLANT ’ S R EPLY B RIEF

K EN P AXTON Attorney General of Texas C HARLES E. R OY First Assistant Attorney General S COTT A. K ELLER Solicitor General R ICHARD B. F ARRER Assistant Solicitor General State Bar No. 24055470 O FFICE OF THE A TTORNEY G ENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1823 Fax: (512) 474-2697 richard.farrer@texasattorneygeneral.gov C OUNSEL FOR A PPELLANT O RAL A RGUMENT R EQUESTED ACCEPTED 03-15-00044-CV 6920036 THIRD COURT OF APPEALS

AUSTIN, TEXAS 9/14/2015 5:37:53 PM JEFFREY D. KYLE

CLERKi T ABLE OF C ONTENTS Index Of Authorities ..............................

.................................................. iii Introduction ......................................

................................................... ...... 1 Argument ..........................................

................................................... ...... 3 I. Plaintiffs’ Defense Of The District Court Is Founde d 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 OfSpecific 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. ......... .......... 19ii

Prayer ............................................

................................................... ....... 19 Certificate of Service ............................

................................................... 21 Certificate of Compliance ......................... ............................................... 22iii I NDEX OF A UTHORITIES 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) .................... ......................................... 13I NTRODUCTION

Plaintiffs mistakenly label the issues in this case as “‘small’” because a new amendment to the Texas Public Informa tion Act (PIA) prospectively exempts from future disclosure inform ation revealing the identity of execution-drug providers. Plaintiffs’ Br. 44. That label merely begs the ultimate question: does a legitimate publi c-safety concern over the release of a small portion of the requested inf ormation permit TDCJ to withhold only that portion of the information—th e supplier’s identity—while releasing every other shred of reque sted 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 info rmation remains at issue. Plaintiffs posit a standard for the physical-safety exception that distorts the PIA’s balance of public safety and acc ess to information. According to Plaintiffs, the public’s right to info rmation demands that sensitive information cannot be withheld due to leg itimate concerns about physical harm, absent an actual identified th reat or plot to commit a violent act. While there is no dispute that publ ic access to information2

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 dis tort the PIA balance is demonstrated by a recent decision in which the Texa s Supreme Court held that information implicating third-party priva cy or property interests may be withheld from public disclosure if disclosure would do no more than “give advantage to a [business] compet itor.” 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 p ublic-safety threat should not be subject to a battle of the exp erts in PIA cases, as Plaintiffs’ advocate. That would leave the public’s safety hanging in the balance. So long as law enforcement’s concerns rel ate 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 con trary, this is a very important appeal that implicates serious publi c-safety concerns. The3

circumstances of this case—as well as inevitable fu ture scenarios involving PIA requests for information that, if rel eased, would foster a substantial risk of physical harm—call for the Cour t to reverse the district court and clarify the physical-safety exce ption. A RGUMENT I. P LAINTIFFS ’ D EFENSE O F T HE D ISTRICT C OURT I S F OUNDED O N E RRONEOUS A SSUMPTIONS A ND F LAWED P REDICATES . Plaintiffs’ brief is founded on a series of invalid assumptions and predicates, which Plaintiffs use to set up and knoc k 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 evidenc e that must demonstrate on their own an actual threat or plot t o commit a violent act against a compounding pharmacy, as Plaintiffs conte nd. See Plaintiffs’ Br. 18-26. What the evidence should do—and does—is demonstrate that the release of requested information entails a subs tantial threat of physical harm. The evidence does that here because it includes a legitimate law-enforcement safety concern about pos sible violence that is4

connected by evidence to the release of specific in formation. The evidence that achieves that result is far more robust than i s required, and it includes:

• a firestorm of hate mail to the Woodlands pharmacy after its identity was revealed as a supplier of execution dr ugs;
• the exploding-head blog posting, which juxtaposes a violent graphic with text identifying a compounding pharmac ist;

• testimony from Director Livingston expressing long- standing safety concerns at TDCJ about compounding pharmacie s that supply execution drugs;

• Livingston’s testimony about the recent escalation of threats of harm in connection with executions, and about in creased dangers in the overall criminal-justice environment ; • the law-enforcement response to the firestorm surro unding the Woodlands pharmacy, which included dispatching officers to ensure protests were not violent;

• the Humez email, which (among other things) notes t he obvious danger of violence and connects it to the r evelation of the pharmacy’s identity;

• the FBI considered the threat environment at the Wo odlands pharmacy serious enough to investigate Humez;

• Director Livingston considered the Humez email an a ctual threat;

• Director of DPS McCraw’s testimony, including that the fervor surrounding the death penalty warns of possi ble violence;

• testimony from McCraw about the vulnerability of th e compounding pharmacy;

• testimony from McCraw explaining that acts of viole nce 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 connect ion with prison issues as well as the Internet’s tenden cy to5 increase the fervor surrounding a topic and access to methods and materials for those intent on violence;

• testimony from Cunningham confirming that acts of v iolence are not necessarily preceded by actual threats or w arnings; 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 stan dard under which all information on a given topic is either su bject to disclosure or may be withheld. Plaintiffs, however, argue as tho ugh the physicalsafety exception is an all-or-nothing inquiry. If there is no specific, verifiable threat of violence, Plaintiffs argue, th ere can be no substantial threat of physical harm. 1

1 See e.g. , Plaintiffs’ Br. vii (arguing, “no history or actu al 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 physi cal harm against any supplier of [execution drugs] in Texas”); id . at 6 (arguing, “no evidence that once the Woodlan ds’ identity became public that there was ever any phys ical harm or any risk of physical harm (substantial or otherwise) against the pharmac y”), id . (noting, “no evidence in6

Plaintiffs misread Cox , which requires courts to “closely examine” each piece of requested information to determine wh ether disclosing it would substantially threaten physical harm. Cox , 343 S.W.3d at 118-19. Plaintiffs, in contrast, focus on select evidence a nd ask if that evidence amounts to an actual threat to commit violence; onl y 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 gi ven 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 o f executions. Yet Plaintiffs’ briefing gives that impression.

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

. at 9 (arguing, “the documents upon which TDCJ and D PS rely do not contain any discernible direct threats or any readily identifia ble targeted threats against any pharmacies or individuals connected to them or to t he TDCJ (quotation marks omitted)); id . at 9 (arguing that the exploding-head blog has no “wording [that] could be loosely interpreted as threatening” (quotation m arks omitted)); id . at 10 (arguing Humez “did not make any actual threats” (quotation m arks omitted)); id . at 16 (“There must be an actual, substantial threat of ph ysical 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 s ubstantial threat of actual physical harm.”); id . at 30 n.9 (arguing there is not substantial threa t of physical harm to President Obama because a particular Internet posti ng was harmless); id . at 39 (indicating that TDCJ’s arguments fall short becaus e they do not “establish[] any kind of actual violence”).7

Cox explains that “[t]he dividing line between disclosu re and restraint must be determined by proof” in the form of “detailed evidence or expert testimony” connecting law enforcement’s s afety concerns with specific requested information. Cox , 343 S.W.3d at 119. It is erroneous to argue, as Plaintiffs’ brief repeatedly does, tha t 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 o f 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 assessm ent 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 Os ama bin Laden was killed and a troubling online posting noted, “I hop e President Obama has8

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

. Because an investigation revealed the posting was m ade by a harmless middle-school child, Plaintiffs announce the (large ly irrelevant) conclusion that the posting itself was not a substantial threat of physical harm. See id

. The conclusion Plaintiffs’ draw from their Obama ex ample 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 in formation revealing specific details about the President’s security arr angements 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 exceptio n because it could give a potential and as-yet unidentified person who migh t be “intent on harming” the governor “the means to accomplish that goal”). Plaintiffs’ formulation of the exception, however, apparently w ould not permit that result. See Plaintiffs’ Br. 30 & n.9 (arguing that the proper i nquiry is whether any “bit of information” “is an actual thre at” and concluding that the child’s post “was not a STPH [substantial threa t of physical harm].”).9

Likewise, in this case there is ample evidence spec ifically connecting the single item of requested information to law enforcement’s concerns about violence. Whether there is, for exam ple, an actual bomb threat or currently existing plot against a provide r of execution drugs cannot be the sole issue. TDCJ has demonstrated th rough evidence how law enforcement’s assessment of a high-threat envir onment is connected to the disclosure of the identity of the supplier o f 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 th e 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 in formation from disclosure. It does not require evidence that such a threat is likely or even that violence is likely. Nor does it require e vidence of a past incident of violence by a particular person or group.10

Cox requires a substantial threat of physical harm, wh ich can be demonstrated through a DPS or other law-enforcement expert’s assessment of the probability of harm, as well as e xpert testimony or other evidence that shows how the release of specif ic information implicates that assessment of harm or otherwise sho ws 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 “pro bability of harm” in a given circumstance is best assessed by “law enfor cement 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 specif ic violent act or existing plot to commit one at a compounding pharma cy, there never will be one. Plaintiffs rail against deferring to law e nforcement warnings about public-safety threats because they disagree w ith DPS’s assessment. But that these plaintiffs disagree wit h DPS’s assessment of an unacceptably high probability of harm cannot cha nge the fact that, under Cox , that determination is for DPS to make.11

Cox does not contemplate a “battle of experts” in ever y case to resolve the precise degree of probability of harm p resented by a given situation. Instead, Cox requires that “a certain amount of deference must be afforded DPS officers,” unless their warnings ar e mere “vague assertions of risk.” Id . And as already discussed in the opening brief, t he assessments from DPS and law-enforcement experts in this case supporting withholding the requested information ar e 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-blow n expert opinion, or qualify under Plaintiffs’ expert’s definition of a “threat assessment.” See Plaintiffs’ Br. 31-36 (arguing that an assessment o f 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 t hrough other evidence. Id . Moreover, there is no indication in the Cox opinion or the Cox

record on appeal that any expert testimony was presented a t all until after the12

case was remanded by the Supreme Court; DPS officia ls 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 de ference. 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 b etween competing expert testimony is the opposite of deference. Acc ordingly, there is no place in Cox

for judges to act as security officers. Putting these principles into practice and returnin g to the Obama example above, a law-enforcement assessment that di sclosure of information about the President’s schedule would pr esent an unacceptably high “probability of harm” “must be af forded” deference. Id

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

2 The relevant record for these purposes is the reco rd 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 requir ed (as it did in this case) by proffering expert opinions on the probability of ha rm 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 secrec y of the President’s schedule. Plaintiffs surely would not argue that i n such a scenario the law-enforcement assessment should be susceptible to a battle of the experts. The Court should correct the district cou rt’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 argu ment based on past Attorney General Opinions, they nonetheless refer to several past informal letter rulings to support a contention tha t the underlying Attorney General opinion here “was a bit of an abou t-face.” Plaintiffs’ Br. 2. The Court need not be side-tracked by Plaintiff s’ reference to these letter rulings; the letter rulings do not support P laintiffs’ arguments and, in any event, are not precedential. S ee Tex. Att’y Gen. ORD-673 (2001) (describing the difference between a nonprecedentia l informal letter ruling and a prior Attorney General determination). Plaintiffs begin with informal letter ruling OR-175 07 (2010), which did not involve the physical-safety exception. See Plaintiffs’ Br. 3. Cox14

first announced the exception over half a year afte r OR-17507 was issued. Letter ruling OR2010-17507 is not relevant here. Next, Plaintiffs invoke informal letter ruling OR-1 0208 (2012), which was issued after Cox and involved a terse discussion of the “new standard.” Id . Rejecting application of the physical-safety exc eption, the letter ruling noted that TDCJ sought the exception based solely on a belief that “harassment” of execution-drug suppliers “cou ld 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 con necting the disclosure of the requested information with the unacceptably high probability of harm identified by law-enforcement experts. Furthe r, OR-10208 states that it “is limited to the particular information a t issue in this request and limited to the facts presented to us; therefore , this ruling must not be relied upon as a previous determination regardin g any other information, or any other circumstances.” Id . at 4. Texas Attorney General Opinion OR-10208 (2012) is therefore also o f 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 seekin g to withhold the identity of the compounding pharmacy and pharmacist under the physical-safety exception because “suppliers will s top 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 th e exception out of “general concerns that LID [execution-drug] supplie rs 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 excep tion). These accusations are incorrect and, in any event, do not advance Plaintiffs’ arguments. TDCJ invoked the physical-safety exception out of c oncern for public safety. 3 It is not TDCJ’s position that the physical-safet y exception shields information from disclosure because disclos ure might have an

3 CR.552 (“The department seeks to withhold the iden tifying 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 associate d with the pharmacy.”); CR.558 (Affidavit of Brad Livingston noting, “TDCJ and sel ling pharmacies have long been concerned about the safety of the pharmacists provi ding 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 TDC J, or because disclosure would make obtaining execution drugs mor e difficult for TDCJ. Even if TDCJ were to seek protection of compounding -pharmacy information for economic reasons like those ascribe d to TDCJ by Plaintiffs, there is a strong likelihood the inform ation would in fact be withheld from disclosure. The Texas Supreme Court recently clarified in Boeing that even core-public information may be withheld f rom 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 informatio n 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] standa rd is intentionally high because we are dealing with an exception to core pu blic information.”). Given that the physical-safety exception was introd uced into the PIA’s17

scheme by the Texas Supreme Court, and given Boeing interpreted the PIA to shield third-party information from disclosu re by showing merely that disclosure “would give advantage to a competit or,” Boeing , 2015 WL 3854264, at *7 (quotation marks omitted), *9, Plain tiffs’ (erroneous) assertions about TDCJ’s supposed motivations for wi thholding 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 n ot have been considered at all, as discussed in TDCJ’s opening b rief. See TDCJ Br. 51- 58. Moreover, Plaintiffs’ erroneous view of Cox and its standard taint Parker’s opinion and testimony because Parker’s inq uiry mirrors Plaintiffs’ misunderstanding of Cox . Parker was concerned only with determining whether the evidence he reviewed demons trated 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) determi nation. Parker did not, therefore, independently inquire into whether disclosing information18

(and, in particular, information identifying the co mpounding pharmacy) presents an unacceptably high probability of harm. See id. 54-56. The defense of Parker’s opinion in Plaintiffs’ brie f 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 identifia ble targeted threats against any pharmacies or individuals conne cted to them or to the TDCJ,” Plaintiffs’ Br. 9 (quotation marks o mitted), 34;

• “the messages and reviews about the Woodlands Pharm acy” were not threats and only “amount to ‘criticisms’ of the pharmacy,” id at 9;

• the exploding-head blog posting contained “no wordi ng that could be loosely interpreted as threatening to the subjec t 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 purpos e of the physicalsafety exception requires speaking to or confrontin g 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 a ny threats,” id

. at 10; Parker’s opinion and testimony not only should neve r have been considered, they also involved the wrong inquiry. See TDCJ Br. 51-56.19

II. P LAINTIFFS O FFER N O M EANINGFUL R ESPONSE T O T HE N EED F OR A R EMAND I N T HE E VENT T HE C OURT D ETERMINES TDCJ I S N OT E NTITLED T O S UMMARY J UDGMENT . TDCJ’s opening brief discussed TDCJ’s alternative r equest for a remand even if the Court determines that TDCJ is no t entitled to summary judgment. Plaintiffs’ brief offers no mean ingful response. Accordingly, because Plaintiffs, at most, could onl y raise a genuine issue of disputed fact regarding the applicability of the physical-safety exception, the portion of the district court’s orde r granting Plaintiffs’ summary-judgment motion should be reversed and the case remanded for trial, in the event the Court does not render j udgment for TDCJ. P RAYER The Court should reverse the district court and ren der judgment for TDCJ or, in the alternative, remand the case for tr ial on the merits.20 Respectfully submitted. Dated: September 14, 2015

K EN P AXTON Attorney General of Texas C HARLES E. R OY First Assistant Attorney General S COTT K ELLER Solicitor General /s/ Richard B. Farrer R ICHARD B. F ARRER Assistant Solicitor General State Bar No. 24069702 O FFICE OF THE A TTORNEY G ENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-2923 Fax: (512) 474-2697 richard.farrer@texasattorneygeneral.gov C OUNSEL FOR A PPELLANT21 C ERTIFICATE OF S ERVICE I hereby certify that on this the 14 th day of September, 2015, a true and correct copy of the foregoing document was serv ed via File & ServeXpress to all counsel of record. Philip Durst Manuel Quinto-Pozos D EATS , D URST , O WEN & L EVY , 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 A TTORNEY AT L AW 211 South St., #346 Philadelphia, PA 19147 Telephone: (512) 294-1540 Facsimile: (215) 733-9225 maurielevin@gmail.com

/s/ Richard B. Farrer Assistant Solicitor General22 C ERTIFICATE OF C OMPLIANCE In compliance with Texas Rule of Appellate Procedu re 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