Texas Department of Criminal Justice, Bryan Collier, Bobby Lumpkin, and Kelly Strong v. Anibal Canales and Ivan Cantu ( 2024 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00248-CV
Texas Department of Criminal Justice, Bryan Collier, Bobby Lumpkin, and Kelly Strong,
Appellants
v.
Anibal Canales and Ivan Cantu, Appellees
FROM THE 419TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-22-007149, THE HONORABLE CATHERINE MAUZY, JUDGE PRESIDING
C O N C U R R I N G AND D I S S E N T I N G O P I N I O N
Because I conclude that Anibal Canales and Ivan Cantu (collectively, Plaintiffs)
alleged valid ultra vires claims against appellees Bryan Collier, Bobby Lumpkin, and
Kelly Strong (collectively, the TDCJ Officials), I respectfully dissent from the majority’s
decision to render judgment dismissing those claims. 1
“Sovereign immunity generally bars lawsuits against the State absent legislative
consent to be sued.” Hidalgo Cnty. Water Improvement Dist. No. 3 v. Hidalgo Cnty. Irrigation
Dist. No. 1, 669 S.W.3d 178, 182 (Tex. 2023). Even in the absence of legislative consent, “a
claim may proceed against a government official in his official capacity if the plaintiff
1 I agree with the majority that Plaintiffs’ claims against TDCJ itself must be dismissed.
See Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011) (per curiam) (“[T]he
proper defendant in an ultra vires action is the state official whose acts or omissions allegedly
trampled on the plaintiff’s rights, not the state agency itself.”).
successfully alleges that the official is engaging in ultra vires conduct.” Chambers-Liberty
Cntys. Navigation Dist. v. State, 575 S.W.3d 339, 344 (Tex. 2019). To fall within the ultra vires
exception, “a suit must not complain of a government officer’s exercise of discretion, but rather
must allege, and ultimately prove, that the officer acted without legal authority or failed to
perform a purely ministerial act.” Schroeder v. Escalera Ranch Owners’ Ass’n, 646 S.W.3d 329,
332 (Tex. 2022) (citing City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009)). An
official acts “without legal authority” if he “exceeds the bounds of his granted authority or if his
acts conflict with the law itself.” Id. (citing Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017)).
Plaintiffs allege that the TDCJ Officials violated and continue to violate the Texas
Pharmacy Act; the Controlled Substances Act; the Texas Food, Drug, and Cosmetic Act; and the
Texas Penal Code (collectively, the “Acts”) by “procuring, possessing, distributing, and
administering” compounded pentobarbital in executions. The TDCJ Officials respond that
Article 43.14 of the Code of Criminal Procedure impliedly grants them the necessary authority.
The central question in this case is the extent of the TDCJ Officials’ authority under that statute.
Article 43.14 provides:
Whenever the sentence of death is pronounced against a convict, the sentence
shall be executed at any time after the hour of 6 p.m. on the day set for the
execution, by intravenous injection of a substance or substances in a lethal
quantity sufficient to cause death and until such convict is dead, such execution
procedure to be determined and supervised by the director of the correctional
institutions division of the Texas Department of Criminal Justice.
Tex. Code Crim. Proc art. 43.14(a). As the majority notes, this statute authorizes the director of
the TDCJ’s criminal division to “determine[]” the protocol for carrying out execution by lethal
injection by a “substance or substances” but does not require or authorize use of a particular
substance. Ante at 8. I agree with the majority that the grant of authority to determine the
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execution protocol necessarily implies the power to select the substance or substances, to procure
those substances, and to store them for use. Id. at 9; see San Antonio River Auth. v. Austin
Bridge & Rd., L.P., 601 S.W.3d 616, 621 (Tex. 2020) (agencies and officials may “only exercise
those powers granted by statute, together with those necessarily implied from the statutory
authority conferred or duties imposed” (citing City of Sherman v. Public Util. Comm’n of Tex.,
643 S.W.2d 681, 686 (Tex. 1983))). I disagree with the majority’s conclusion that Article 43.14
authorizes the TDCJ Officials to exercise these implied powers independently of the Acts. Ante
at 10–12.
The basis for the majority’s conclusion is that Article 43.14 and the Acts are
not in pari materia. Id. The doctrine of in pari materia is a principle of statutory
interpretation. Texas Ass’n of Acupuncture & Oriental Med. v. Texas Bd. of Chiropractic
Exam’rs, 524 S.W.3d 734, 744 (Tex. App.—Austin 2017, no pet.). “Statutes that are found to be
in pari materia are construed together, as though they were parts of the same law, and if possible,
conflicts between the statutes are harmonized.” Id.; see Tex. Gov’t Code § 311.026(a)
(codifying common-law doctrine of in pari materia). If the statutes are in pari materia, the
statutes are construed together, if possible, to give effect to both. See Tex. Gov’t Code
§ 311.026(a). If two statutes are irreconcilable, “the special or local provision prevails as an
exception to the general provision, unless the general provision is the later enactment and the
manifest intent is that the general provision prevail.” Id. § 311.026(b).
The majority concludes that Article 43.14 and the Acts are not sufficiently similar
to be in pari materia. See In re Estate of Forister, 421 S.W.3d 175, 180 (Tex. App.—San
Antonio 2013, pet. denied) (“Statutes are in pari materia if they concern the same subject matter,
relate to the same person or class of persons, or have the same object or purpose.”). Specifically,
3
Article 43.14 is much narrower in scope and purpose than the Acts, which apply in a wide
variety of situations and are “generally aimed at regulating medical treatment as well as
protecting public health and safety.” Ante at 10–11. But that conclusion—even if correct—does
not necessarily mean Article 43.14 and the Acts operate independently. “When statutes are
ostensibly conflicting but are not in pari materia, rules of statutory construction other than
section 311.026(b) will dictate whether there is truly an irreconcilable conflict and, if so, which
statute controls.” Texas State Bd. of Chiropractic Exam’rs v. Abbott, 391 S.W.3d 343, 350 (Tex.
App.—Austin 2013, no pet.). One of those rules is that courts are to attempt to harmonize
overlapping statutes if possible. Harris Cnty. Appraisal Dist. v. Texas Workforce Comm’n,
519 S.W.3d 113, 122 (Tex. 2017) (holding that if two statutes seem to be in conflict, “we will
construe the different provisions in a way that harmonizes rather than conflicts”).
The Acts each regulate some aspect of procuring, possessing, distributing, or
administering a drug and each defines the term in part as a “substance,” other than food, that is
intended to affect the structure or a function of the human body. 2 See Tex. Occ. Code
§ 551.003(18)(C); Tex. Health & Safety Code § 481.002(16); Tex. Penal Code § 1.07(12). The
legislature presumably selected the wording of these definitions with care and with full
awareness that article 43.14 specifies injection with a “substance or substances” as the method of
execution. See Texas Bd. of Chiropractic Exam’rs v. Texas Med. Ass’n, 616 S.W.3d 558, 577
(Tex. 2021) (“We presume the Legislature selected language in a statute with care and that every
word or phrase was used with a purpose in mind.” (internal quotation marks omitted)); C.M.C.
2 The Food, Drug, and Cosmetics Act defines a drug as “articles,” rather than substances,
“other than food, intended to affect the structure or any function of the body of man or other
animals.” Tex. Health & Safety Code § 431.002(14). There is, however, no dispute that the
plain meaning of “substance” includes an “article” as the FDCA uses that term.
4
v. Texas Dep’t of Fam. & Protective Servs., ___ S.W.3d. ___, ___, No. 01-22-00965-CV,
2024 WL 86411, at *6 (Tex. App.—Houston [1st Dist.] Jan. 9, 2024, pet. filed) (“[W]e presume
the legislature had full knowledge of existing law, including rules, statutes, and caselaw, at the
time of enactment and intended the statute to coexist with existing law.”).
The next question is whether it is possible to give effect to both Article 43.14 and
the Acts. The Food, Drug, and Cosmetics Act (FDCA) prohibits “the introduction or delivery for
introduction into commerce” or the “receipt in commerce” of “any food, drug, device, or
cosmetic that is adulterated or misbranded.” Tex. Health & Safety Code § 431.021(a), (c). This
prohibition includes a prescription requirement. Specifically, a “drug intended for use by man”
that is either (1) “not safe for use except under the supervision of a practitioner licensed by law
to administer such drug” or (2) that the federal Food, Drug, and Cosmetics Act (“Federal Act”)
limits to use under supervision of a licensed practitioner, “shall be dispensed only . . . on a
written prescription of a practitioner licensed by law to administer such drug[.]” Id.
§ 431.113(c)(1)(A)–(B)(i). A drug that meets these criteria and is dispensed without a
prescription is deemed misbranded. Id. § 431.113(c)(1)(B)(iii).
The TDCJ Officials argue that the FDCA does not apply to their conduct for two
reasons. 3 First, they argue that the FDCA is limited to drugs intended for a medical purpose
because a medical provider must have a medical purpose to write a prescription. But Section
431.113 requires a prescription to dispense medications that meet certain criteria, none of which
pertain to the intended use of the substance. See generally Tex. Health & Safety Code
§ 431.113(c). I see no basis for exempting compounded pentobarbital from the prescription
3 TDCJ Officials do not dispute that they obtained—and continue to obtain—
compounded pentobarbital without a prescription.
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requirement when it meets the express statutory criteria. See In re Geomet Recycling LLC,
578 S.W.3d 82, 87 (Tex. 2019) (orig. proceeding) (“It is not our place to ‘judicially amend the
statute to add an exception not implicitly contained in the language of the statute.’” (quoting
Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 867 (Tex. 1999))).
Applying the FDCA to lethal injection drugs is consistent with its purpose.
Although this appears to be a question of first impression regarding the Texas FDCA, it is not
under the Federal Act. 4 Chaney v. Heckler, 718 F.2d 1174, 1179–82 (D.C. Cir. 1983), rev’d on
other grounds, 470 U.S. 821 (1985). The dissent in that case argued that the Federal Act did not
apply to the prison officials ordering the drugs because the officials—and not the inmates—were
the ultimate consumers of the execution drugs and thus beyond the reach of the Federal Act. Id.
at 1182. The majority disagreed, explaining that the “ultimate purpose” of prohibiting the sale of
misbranded drugs is “protection of those who consume drugs from the potential harm of
misbranding by anyone in the chain of distribution.” Id. A prisoner awaiting execution “might
be an unwilling consumer,” but that “does not change the fact that the prisoner is the one who
will suffer an excruciating death if this unapproved administration [of drugs] is conducted
improperly.” Id. The D.C. Circuit continues to follow this portion of Chaney’s reasoning. See
In re Federal Bureau of Prisons’ Execution Protocol Cases, 980 F.3d 123, 136 (D.C. Cir. 2020)
(per curiam) (applying Chaney); Cook v. Food & Drug Admin., 733 F.3d 1, 7–11 (D.C. Cir.
2013) (applying Federal Act to import of lethal injection drug).
4 I consult decisions interpreting the Federal Act because it includes analogous statutory
language. See 21 U.S.C. §§ 331(a) (prohibiting introduction into commerce or receipt of a
misbranded drug), 353(b) (deeming prescription drug dispensed without prescription to be
misbranded); see also Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 68 (Tex. 2019) (“We have
utilized comparable federal law as guidance in situations where our state statute and the federal
law contain analogous statutory language.”).
6
I would construe the FDCA and Article 43.14 together and, guided by Chaney,
conclude that the FDCA applies to the procurement and storage of lethal injection drugs by the
TDCJ Officials. 5 See Dyer v. Texas Comm’n on Env’t. Quality, 646 S.W.3d 498, 511 (Tex.
2022) (“[W]e favor concurrent operation of overlapping statutes.”). I reach the same conclusion
with respect to the other statutes for essentially the same reasons: each statute applies by its
terms to compounded pentobarbital and it is possible to apply those statutes without leading to an
absurd result. I would therefore affirm the district court’s denial of the plea to the jurisdiction as
to the claims against the TDCJ Officials.
For these reasons, I concur in part and respectfully dissent in part. 6
5 This conclusion does not, as the TDCJ Officials suggest, lead to an absurd result. “To
be absurd in the legal sense, a result must be more than merely odd, ‘unintended,’ ‘improvident,’
or even ‘inequitable,’” it “must be ‘unthinkable or unfathomable.’” In re T.V.T., 675 S.W.3d 303,
309 (Tex. 2023) (per curiam) (quoting Combs v. Health Care Servs. Corp., 401 S.W.3d 623, 630
(Tex. 2013)). TDCJ Officials argue that an interpretation that leads to “blocking access to lethal-
injection drugs” is absurd because it makes “the death penalty practically impossible to
administer.” But applying the FDCA at most narrows the universe of substances available for
use in an execution. Even if this result would seem “odd” or “unintentional,” there is nothing
unthinkable or unfathomable in directing officials to carry out executions by injection of a
“substance or substances” while also requiring those officials to comply with laws applicable to
those substances. See Combs, 401 S.W.3d at 630 (“The absurdity safety valve is reserved for
truly exceptional cases, and mere oddity does not equal absurdity.”). On this record, I cannot
conclude that applying the FDCA would lead to an absurd result.
6 The majority notes in closing that its decision does not mean “that there is no limitation
on TDCJ officials in their treatment of death-row inmates and administration of lethal injections”
and that review in federal court may be available. Ante at 13. The majority also points out that
Plaintiffs did not allege a violation of article 43.14 of the Code of Criminal Procedure, which
provides that “No torture, or ill treatment, or unnecessary pain, shall be inflicted upon a prisoner
to be executed under the sentence of the law.” Id. at 13–14 (citing Tex. Code Crim. Proc. art.
43.24). I note that the Court of Criminal Appeals has already held that an inmate may not
challenge the constitutionality of the State’s planned method of execution in a writ of habeas
corpus. Ex parte Alba, 256 S.W.3d 682, 683–84 (Tex. Crim. App. 2008). Today’s decision
further narrows the available avenues in state court. See Ex parte Chi, 256 S.W.3d 702, 714 n.43
(Tex. Crim. App. 2008) (Price, J., dissenting) (“Because this Court refuses to exercise habeas
corpus jurisdiction, and because the civil courts cannot enjoin executions even if they can
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__________________________________________
Rosa Lopez Theofanis, Justice
Before Chief Justice Byrne, Justices Kelly and Theofanis
Filed: July 12, 2024
entertain challenges to the lethal-injection protocol, dozens, perhaps even scores, of death-row
inmates may eventually be executed before the matter could be resolved on the civil side of
the docket.”)
8