When a person dies in police custody, Texas law mandates agencies submit details to the attorney general within 30 days, but our analysis finds consequences for thwarting this transparency measure are rare.
By David Barer & Josh Hinkle
If someone died in police custody in a far-flung part of Texas in 1983 – and it didn’t make the news – you might never have known. Such cases could easily be kept quiet, potentially swept under the rug and away from scrutiny.
That’s how Walter Martinez described a dark era in law enforcement transparency — the early 80s — a period, he added, that lately doesn’t seem so far removed from what’s happening across the state today. Questions over police tactics and public information are once again top of mind.
Back then, Martinez was entering his first session as a Democratic state representative from San Antonio. He knew no state agency kept track of all the people dying in jail, prison and police custody. Without that information, it was exceedingly difficult to analyze patterns of deaths or identify solutions, he said.
Martinez changed that. With sponsorship from then-state-senator and current Democratic Congressman Lloyd Doggett, Martinez filed and passed Texas’ law requiring jails and other law enforcement agencies to submit a death report to the Texas attorney general’s office.
The new law required law enforcement agencies to provide details about the incident and cause of death. The reports would be public, and the penalty for failing to file them a Class B misdemeanor punishable by up to 180 days in jail. At that time, the law required the reports to be submitted within 20 days of a death, but that timeframe was later lengthened to 30 days.
“The purpose was to create a central databank and hopefully with that databank to begin to analyze it and look at what is the problem, and how can we begin to address future legislation to address this problem,” Martinez said in an interview with KXAN. “It was about trying to create some transparency and some accountability in the system and to hopefully use this data for future legislation.”
To date, more than 13,000 custodial death reports have been filed, providing perhaps the most comprehensive collection of in-custody death records in Texas. The information is available online, categorized and searchable by law enforcement department and deceased individuals’ names.
Martinez said he passed the most robust bill he could at the time, with the intention of returning to improve it later. But, he didn’t win a second term and significant alterations to the law have not happened.
While the in-custody death database provides critical transparency in fatal cases, a KXAN investigation has found there are still lingering problems.
Despite the current law requiring agencies to file the reports within 30 days and to include all relevant facts, such as a cause of death, a KXAN review of the last five years of reports found hundreds have been filed late and more than a hundred others have been left incomplete for over a year.
KXAN used records from the attorney general’s office as well as data compiled by the Texas Justice Initiative, a nonprofit that collects and provides criminal justice data to the public, to better understand the problem.
Most cases have been reported correctly, and the failures found by KXAN represent a fraction of all cases submitted to the attorney general. Still, KXAN found no instance of enforcement or punishment in Texas’ counties where the most violations apparently happened.
“You know, you feel bad that the intent that you had for that piece of legislation was not — is not — being achieved,” Martinez said. “It’s unfortunate. I think it’s bad.”
Law enforcement transparency and reform were a primary focus for Martinez back then, he said. Now, with the deaths of numerous people of color in police custody in recent years sparking national protests and calls for criminal justice reform, another lawmaker says he is interested in reexamining the custodial death report law during the 2021 legislative session.
‘Put some teeth into it’
KXAN found 372 reports filed later than 30 days after a person’s death, since 2015. Nearly half of those, or 179, were filed late in 2020 by the Texas Department of Criminal Justice’s Office of Inspector General, according to state data. TDCJ operates the state’s prisons, and its Office of Inspector General is an independent law enforcement arm that investigates deaths and crimes that could affect TDCJ.
In addition to the late cases, KXAN discovered 128 reports in that same timeframe left pending for more than a year without medical examiner results noted, according to state data. Some departments updated those incomplete reports after KXAN contacted them.
Though the number of incorrect reports represents a fraction – roughly 10% — of all the reports filed since 2015, State Rep. Eddie Rodriguez, D-Austin, said KXAN’s analyses “highlight the need to change the law for more transparency.”
Rodriguez said he is looking at the law to see how the enforcement mechanism could be improved. The reporting law’s purpose is to provide “transparency, more information and timely reporting,” he said.
“I see this as a criminal justice reform issue, and there’s a lot about our criminal justice system that we have to update, to reform,” he said. “Add it to the list.”
Deaths with incomplete and late reports pepper the state. Some, like Jason Roque’s case, have garnered media attention and spurred lawsuits. Roque, 20, was shot and killed in northeast Austin just miles outside Rodriguez’s district.
An Austin Police Department officer shot Roque on a residential street during a mental health crisis encounter on May 2, 2017. Roque’s custodial death report was not completed with a medical examiner’s manner of death for more than three years. On Sept. 2, 2020, less than two weeks after being contacted by KXAN about the incomplete report, APD added those findings to it.
The narrative summary in Roque’s report includes just six brief sentences and explains little about how the incident unfolded. According to the report, officers responded to a 911 call about a guy “going crazy,” waving a gun in the air and pointing it at a house. That weapon was later found to be a BB gun, according to a lawsuit Roque’s family filed.
“Officers arrived at the scene and observed a subject armed with a handgun. The subject pointed the gun at himself and then in the direction of officers. An officer fired multiple shots at the subject. He sustained multiple gunshot wounds [which] resulted in his death,” the report states.
Law enforcement agencies can choose what to include in the narrative summaries of the reports. The law does not specify what must be included in that portion of the document.
“The summaries included with the reports have no average length or length requirements. That is left to the reporting agency to determine the appropriate amount of information to include to satisfy the reporting requirement,” according to the attorney general’s office.
A few months after his death, Roque’s family sued the City of Austin and James Harvel, the officer who fired at Roque, for wrongful death in federal court. The case remains pending. Jeff Edwards, the family’s attorney, argues Roque did not pose a danger to officers and dropped the BB gun after being shot once. Two seconds after Roque dropped the gun, Harvel shot him again. Then two seconds later Roque was shot again and killed, according to the lawsuit and police cruiser video of the incident.
Edwards said he feels the city of Austin and APD have treated custodial deaths as a “litigation management” issue, rather than striving to be transparent and providing all available information to the families of people who died in custody.
“I am disappointed but hardly surprised. There are no consequences to not following through with (custodial death reports),” he said. “The officer didn’t fulfill his obligations when he shot Jason Roque dead. So, you know, in the grand scheme of things, while it’s a systemic problem that they’re not fulfilling their obligations with regards to custodial death reports, it pales in comparison to shooting an unarmed young man.”
APD said the delay in completing Roque’s report was due to “attrition within the department,” according to a department spokesperson.
APD also left the 2017 custodial death report for Landon Nobles incomplete for years.
Nobles, 24, was shot and killed on Austin’s Sixth Street by an APD officer on May 7, 2017. APD did not update Nobles’ report with a manner of death until three years later. APD updated both Nobles’ and Roque’s death reports days after receiving an email from KXAN about them. The Nobles family’s own federal case remains pending.
APD said Nobles’ report was also delayed because of attrition at the department.
“Since this was brought to our attention, our office has submitted a recommendation to the OAG to improve their system for enhanced reporting from law enforcement agencies. In addition, we have expanded our own reporting processes to ensure going forward that we capture what information was submitted to the OAG and the date that information was submitted,” APD said in a statement.
In the past five years, APD also filed two other custodial death reports late, according to state records.
The death report for Zachary Anam, a 19-year-old who shot himself in the head while sitting in the back of an Austin police cruiser, was filed 72 days after his death in January 2017, according to the attorney general’s original report. Additionally, the death report for 62-year-old James Sizer, who died March 14, 2015, was filed 68 days after his death, according to his original death report.
Sizer died days after being released from jail from complications related to hitting his head on his driveway while being shocked with a stun gun during his arrest, according to his death report. Sizer’s family sued APD over his death but lost the judgement in 2017, according to federal court records.
APD said the Anam and Sizer reports appeared to be filed later than 30 days after their deaths because the online system changed the dates after they were updated.
“The Austin Police Department is committed to ensuring documentation and reports are completed in a timely manner. We aim to provide information that is as up-to-date and accurate as possible,” APD said in a statement. “When using the OAG web system, the date will update whenever new documentation, such an autopsy report, is submitted. For that reason, those cases appeared as if the submission date was past the 30-day timeframe.”
KXAN checked into APD’s claim that it filed the reports on time, but the only records available from the attorney general’s office show they were filed late. The attorney general’s office said those dates show when the report was first submitted, and APD did not provide specific dates the reports were submitted within 30 days of the men’s deaths.
KXAN contacted more than a dozen departments with late and incomplete reports. Some acknowledged the reports should have been filed on time. Many departments did not respond to multiple requests for comment. Some said the reports in question were filed correctly but could not offer clear evidence to support that claim.
‘There aren’t exceptions’
The attorney general’s office keeps its custodial death database on the internet, and every report is available to download. Law enforcement agencies fill out the forms online.
The first version of a custodial death report is labeled “original.” If the original is amended, it is labeled “amended” with a revision number. For example, if a report has been amended twice, the database would have three reports: the original, the first amended version and the second amended version. Each time a submitted report is amended with new information, the site notes the date and version of the report, according to the attorney general’s office and the step-by-step training guide given to law enforcement agencies for inputting a custodial death report, which KXAN obtained through the Texas Public Information Act.
“We do not create or alter reports for other law enforcement agencies. We do indicate whether the report available in our database is the original or an amended version submitted to our office,” the attorney general’s office said.
The Montgomery County Sheriff’s Office claimed three of its reports were submitted on time, though the dates on the original reports indicate they were filed late and the sheriff’s office couldn’t provide alternative dates that would show the reports were submitted within 30 days.
KXAN identified nine death reports filed late by the Tarrant County Sheriff’s Office. That agency said the employee responsible for some of those reports is no longer employed, so “his reason for not reporting in a timely manner would be unknown.” In some cases, information needed to fill out the reports was not readily available, the sheriff’s office said. The agency also said a separate report that was left incomplete for more than a year was “an administrative error that is being corrected.”
The Bexar County Sheriff’s Office claimed four of its reports should not be considered late because the department began creating them within 30 days but just didn’t submit them until later because they were waiting for the medical examiner’s findings.
“By creating a CDR, we have established the file on the custodial death with the OAG. Almost, if not all, custodial deaths reports you referenced have been initiated on the OAG’s database prior to the 30 days as required,” said a Bexar County Sheriff’s Office spokesperson. Bexar County Sheriff’s Office did not provide an explanation for three other late reports.
The agency also left two reports incomplete for more than a year. One incomplete report was filed under a different administration and “under review.” In the other case, there was a “error with the system,” and “the cause of death was verbally relayed” to the attorney general, said a Bexar County Sheriff’s Office spokesperson.
Amanda Woog — an Austin attorney, co-founder of Texas Justice Initiative and executive director of the Texas Fair Defense Project — pointed out “there aren’t exceptions to the 30-day rule.”
Agencies are supposed to “draft a report” and “file a report,” she said.
‘Not a single prosecution’
In 2016, Woog penned an Op-Ed in the Houston Chronicle, saying Texas and California have two of the strongest custodial death reporting laws in the country. However, Texas’ law requires county prosecutors to investigate and bring charges when the law is not followed, and that has not been happening.
“Unsurprisingly, I could not find a single prosecution under this law in its 30-plus year history,” Woog wrote.
The attorney general’s office said it is “merely a repository for custodial death reports,” does not have authority to enforce the law and does not audit the reports to make sure they are done correctly. When a person contacts the attorney general’s office claiming a report has not been filed, the office encourages them to contact the law enforcement agency directly. The attorney general’s office added that it may “make a courtesy telephone call to the law enforcement entity.”
The attorney general’s office said its computer system does generate and send reminders to agencies that have started a report but not finished it. KXAN requested a record of all those reminders, but the attorney general’s office said its computer system did not save them, and they could not be produced.
In search of a trace of enforcement of the law, KXAN filed requests with more than 10 counties – including Harris, Dallas, Tarrant, Bexar, Travis and El Paso — where law enforcement agencies had multiple instances of late or incomplete death reports, according to state records. No counties had a record in the past 10 years of a charge against an individual with failing to properly submit a custodial death report.
“There isn’t a lot of teeth to the law,” Rodriguez said. “I’m looking into this right now as far as what we might be able to do, or what I might be able to do, next session in a bipartisan way to try to tighten that up to put some teeth into it, whether it’s through the attorney general’s office, or to ensure that our local district attorneys are enforcing the law that requires that report to be done within 30 days.”
Rodriguez said he is interested in updating the custodial death report law in the upcoming 2021 legislative session. But, if attempts at transparency reforms from the last session in 2019 provide a glimpse of what is to come, Rodriguez and others looking to shore up the law may face opposition from police unions.
Those unions, including two of the largest in Texas — Combined Law Enforcement Associations of Texas (CLEAT) and the Texas Municipal Police Association (TMPA) — advocate on behalf of law enforcement and have powerful lobbying presences at the Capitol.
In 2019, CLEAT opposed changing a piece of Texas public records law that has created the so-called “dead suspect loophole.” That law allows police to withhold evidence in cases that have not resulted in a conviction or deferred adjudication. The loophole exists because police can withhold records, such as video evidence, in cases where a suspect died while being arrested or in jail awaiting the conclusion of their case. The person’s death means their case will never be resolved; therefore, police do not have to release the evidence.
CLEAT has more than 25,000 members across Texas, according to its website.
KXAN asked CLEAT for its perspective on the late and incomplete custodial death reports. Charley Wilkison, CLEAT’s executive director, said, “For too long local politicians have evaded responsibility, intentionally blurred the lines of who’s in charge and stood by while the entire law enforcement profession is blamed. Officers are recruited, screened, hired and trained in accordance with decisions made by local elected leaders. CLEAT believes that law enforcement agency heads should comply with the law just as all rank and file law enforcement personnel does.”
Kevin Lawrence, executive director of TMPA, said he believes the investigation and review process surrounding custodial deaths is already extensive.
“Most in-custody deaths, we believe, are being investigated by multiple agencies anyway,” Lawrence said in an interview with KXAN.
TMPA represents 30,000 law enforcement officers in 1,900 medium and smaller-sized agencies throughout the state, Lawrence said.
Regarding a lack of punishment for not following the custodial death reporting laws, Lawrence said he would “guess” there hasn’t been legal action taken because those failures were unintentional and the officers probably “weren’t aware.”
Though “critical incidents” have focused public attention on misconduct, the number of deaths in custody has been “fairly stagnant,” Lawrence said.
Texas’ yearly totals of custodial deaths have gradually trended upward over the past 15 years, according to state records, but the state’s overall population has also grown.
“We believe law enforcement agencies should follow the rules just like everybody else does. But, at the same time, there should be a contemplation of, you know, like we have in the penal code, every offense requires a culpable mental state,” he said.
If an agency intentionally withheld a record, that would require a more severe punishment. But, if an agency missed a deadline or filed an incomplete report unintentionally, that should be handled with a lower-end punishment, Lawrence said.
‘Stick to the program’
Lawrence said TMPA did not register an official position on the dead suspect loophole bill in 2019, but his organization did have concerns about “a mandate to release unsubstantiated allegations against officers before the investigation of those allegations had been completed.”
KXAN’s previous investigation into the ramifications of the dead-suspect loophole profiled the case of Herman Titus, 21, who died in the Travis County jail. Titus’ mother, Demeisha Burns, struggled for years to get more information about her son’s death.
Titus died June 19, 2017. He had been charged with intoxication assault after allegedly driving a car under the influence, crashing and injuring a passenger. After his arrest, he complained of head and upper body pain and tingling in his arms and fingers while in jail. He later collapsed in his cell and suffered a seizure. He was pronounced dead at the hospital, 27 days after his arrest.
Titus’ name resurfaced in this latest investigation, when KXAN found the Travis County Sheriff’s Office had left his custodial death report incomplete — without the medical examiner’s manner of death — for more than three years. It was not until KXAN asked about Titus’ death report that TCSO completed it in September. Most details from the autopsy were not included, but TCSO did note the preliminary autopsy found an enlarged heart. The final report says Titus died from hypertensive cardiovascular disease, a “natural cause of death.”
Regarding Titus’ incomplete report, TCSO said its “detective should have gone to the AG’s site and updated the autopsy findings once they were finalized.”
Titus’ case was one of two TCSO did not fully complete since 2015. Additionally, KXAN found five other cases in the past five years in which TCSO did not submit custodial death reports within 30 days.
TCSO said all the cases highlighted by KXAN “occurred under a previous administration and were all reported to the Texas Commission on Jail Standards within 24 hours,” according to TCSO’s statement. “The appropriate staff have been notified of their duties and clerical issues have been rectified. This is a matter we take very seriously. TCSO has not been cited by the Attorney General or any other entity regarding the reporting of deaths in custody.”
TCSO also said it notified the public of the deaths, via press release, in one to four days. Travis County Sheriff Sally Hernandez declined to interview for this report.
Burns said she wanted to understand what happened to her son. Any additional information, such as the complete custodial death report, would have helped her decide if she should pursue a lawsuit against the county.
“Families want to know, and they don’t want to wait months and years out to get this information,” Burns said. “I wanted to know the same day it happened. And even by the time I got my son in the ground, there still was no answers.”
Burns ultimately did not sue the county. She attempted to hire an attorney but was turned down due to lack of available evidence. Regardless of whether her son’s case warranted a lawsuit, Burns said the information would have helped her have closure.
In 2018, KXAN uncovered a trove of records that helped shine light on the cause of Titus’ death, including internal investigation reports and video of the final moments of the young man’s life. After learning more about her son’s case from those records, Burns later testified at the Capitol in favor of a bill that would have closed the dead suspect loophole. That legislation, authored by State Rep. Joe Moody, D-El Paso, failed to pass. Moody tells KXAN he plans to file the bill in 2021, and Burns said she would again support police transparency efforts in the upcoming session.
“They gotta stick to the program. You want to be responsible. You need to make sure that your job is done. Hand it over to the next person; next person needs to make sure that they job get done,” she said. “If all this information is supposed to be reported back to the public, back to the Attorney General’s Office, that information needs to be there fully, so we can get it.”
Few organizations outside of the Texas Justice Initiative keep close track of the state’s custodial deaths and whether any reports may be missing or filed incompletely. KXAN used TJI’s database, which is free to the public and updated monthly with every available data point in more than 10,000 reports.
Eva Ruth Moravec, TJI’s executive director and co-founder, said she has not seen a clear pattern of any particular agency being a “repeat offender” of violating the custodial death reporting rules. However, since the onset of the pandemic, one agency has stood out in recent months: the Texas Department of Criminal Justice.
“They have had dozens of reports go unfiled for more than 30 days,” Moravec said. “The custodial deaths that have taken place in TDCJ facilities this year are much higher than in previous years, and they’re swamped.”
TDCJ has been slammed by coronavirus, with over 2,000 active cases in 93 of the state’s 102 facilities in early November. TDCJ has reported more than 25,000 total cases of the virus in the state’s prison population, including more than 60 confirmed deaths and at least 40 more presumed deaths still under investigation.
Between 2015 and 2019, TDCJ’s OIG filed five reports late, according to a KXAN analysis of attorney general’s office records. In 2020, the number of late reports rose to 179, state records show.
John West, the OIG’s general counsel, attributed the late reports to a personnel issue. Since KXAN contacted him, West said his agency had gotten up to date on the reports.
“As a result of staff departures, and we’ll just say an ill-advised hire of an employee — we got in the hole,” West said. “Now we are caught up, I believe, at this point in time.”
In her experience, Moravec said reporting mistakes are typically unintentional human errors, “an individual being uninformed” or staff turnover.
“It’s not necessarily an attempt to cover up a death. But, you know, you have to wonder if that possibility exists, right? When you know that there can be these very long lags, as well as just completely missing reports altogether,” Moravec said. “And there is no mechanism to really compel these agencies to file their reports when they are missing.”
Moravec said she hopes for continued improvements to the law with the upcoming state Legislature, and she pointed to incremental legislation offered by former state Rep. Eric Johnson, D-Dallas, that progressively “chipped away” at shortfalls in the reporting law for officer-involved shootings.
“The whole point of collecting data is to be able to say what we’re doing right, what we’re doing wrong, where we can make improvements and what consequences our actions have to potentially change policy and make things better,” she said.
Martinez, the author of the bill creating custodial death reports, echoed Moravec’s sentiment. The original idea was transparency and building a dataset to understand shortfalls in policing and how to prevent deaths. Martinez expected the law would need improvements; unfortunately, he said, that forecast was right.
“It’s kind of a sad commentary that we are continuing to deal with those issues today. It just shows how much greater progress and reform is needed in our system,” he said.