                                                                                ACCEPTED
                                                                            03-15-00044-CV
                                                                                    6920036
                                                                 THIRD COURT OF APPEALS
                                                                            AUSTIN, TEXAS
                                                                       9/14/2015 5:37:53 PM
                                                                          JEFFREY D. KYLE
                                                                                     CLERK
                           No. 03-15-00044-CV

                                                 FILED IN
                In the Court of Appeals 3rd COURT     OF APPEALS
                                             AUSTIN, TEXAS
             for the Third Judicial District
                                          9/14/2015 5:37:53 PM
                                            JEFFREY D. KYLE
                     Austin, Texas                Clerk



              TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                                       Appellant,
                                   v.

          MAURIE LEVIN, NAOMI TERR, AND HILARY SHEARD,
                                        Appellees.


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


                     APPELLANT’S REPLY BRIEF


KEN PAXTON                     SCOTT A. KELLER
Attorney General of Texas      Solicitor General

CHARLES E. ROY                 RICHARD B. FARRER
First Assistant Attorney       Assistant Solicitor General
General                        State Bar No. 24055470

                               OFFICE OF THE ATTORNEY GENERAL
                               P.O. Box 12548 (MC 059)
                               Austin, Texas 78711-2548
                               Tel.: (512) 936-1823
                               Fax: (512) 474-2697
                               richard.farrer@texasattorneygeneral.gov
                               COUNSEL FOR APPELLANT

                    ORAL ARGUMENT REQUESTED
                                      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-Or-
                                 Nothing Disclosure Scenario. ............................... 5

                         2.      Cox Does Not Require An Actual Threat Or
                                 Plot To Commit A Violent Act. ............................. 9

                         3.      Cox    Requires    Deference            To        Law-
                                 Enforcement     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

                                                      i
Prayer ...................................................................................................... 19

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

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




                                                      ii
                               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




                                              iii
                             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
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



                                   2
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


                                     3
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 pro-
          life and animal-rights groups;
        • testimony from Cunningham about violence in connection
          with prison issues as well as the Internet’s tendency to

                                    4
          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 physical-

safety 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

                                            5
      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”).


                                            6
     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



                                    7
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].”).



                                    8
     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.


                                     9
      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.


                                     10
     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




                                    11
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).


                                         12
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


                                    13
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.




                                   14
      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).


                                         15
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



                                    16
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




                                     17
(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 physical-
    safety 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.



                                   18
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.




                                   19
                            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




                               20
                       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




                                   21
                     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




                                   22
