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 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, 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.

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 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).

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] __________________________________________ Rosa Lopez Theofanis, Justice

Before Chief Justice Byrne, Justices Kelly and Theofanis

Filed: July 12, 2024