AUSTIN (KXAN) — Four years had passed since Robert and Kathy Dyer lost their 18-year-old son, Graham. I sat with the couple in the kitchen of their home outside of Paris, Texas, in late 2017.

It was just months since they shared their story with state lawmakers in support of a bill to close an obscure provision in the Texas Public Information Act – something known as the “dead suspect loophole.”

“No family should have to go through the suffering of not knowing the details of how their child has passed,” Kathy told me. “What a shock! I thought a parent would have a right to records to see what the truth was. It’s all captured on video. To say that you don’t have a right to that – it’s just crazy.”

The loophole was part of an exemption in place since 1997, originally meant to protect of the privacy of people wrongfully accused who wanted to prevent the exposure of details surrounding their arrest. It gives police discretion to withhold information in closed criminal cases when a suspect has not gone through the court process.

But over the years, that loophole had emerged, as law enforcement agencies across the state widely began using it to deny families, lawyers and journalists access to records when someone died in police custody – someone who would obviously never go to court.

“To wonder where he would be at this point,” Kathy said. “Would he have gotten through his college? Or would he be married with kids or, you know, who knows what? All that’s lost.”

Graham died following head trauma during an arrest by Mesquite police in 2013. When his parents tried to obtain details – including video – of the arrest, the agency used the loophole in state law to prevent them from obtaining those records. Unwilling to give up, the Dyers later triggered a federal investigation, which opened a backdoor way to access evidence long after their son died.

“We were told we couldn’t bring any kind of civil action because we didn’t have sufficient evidence,” Kathy told a Texas House panel in 2017 about her son’s case, which never went before a grand jury. No officers were disciplined. However, eventually obtaining the video gave the Dyers enough evidence to move forward with a federal excessive force lawsuit against one of the officers involved.

But legislation to close the loophole in 2017 stalled before reaching the House floor for a vote, just months before my trip to visit the couple, who vowed to continue testifying every session until the law was changed.

“Like we almost got a new mission in life – to prevent something like this from happening again,” Robert explained back then. “(Graham) doesn’t have a voice anymore, and we do.”

‘Unintended consequences’

Around the same time, Rep. Joe Moody, D-El Paso, also made his own vow. If re-elected, he would return to the Capitol in 2019 for the next legislative session and re-file his bill to close the loophole.

“We do a lot of things in [the Capitol] with the best intentions,” Moody told me. “But how that works in the real world isn’t known until that law gets on the books and starts getting utilized. Are there unintended consequences?”

The bill had previously met opposition from police unions, and Moody anticipated a similar fight to come. But he was armed with new research from KXAN revealing dozens of deaths where police across Texas had used the loophole to keep records from the public.

“It does discredit to the vast majority of law enforcement that’s doing a good job and staying within the rules,” he said. “If we do our job to hold those few accountable that step outside the line, it is much better for law enforcement as a whole.”

The Dyers would join him in that fight in 2019 – their second push to pass the legislation. “I would hate to see any other family go with what we’ve gone through,” Robert told lawmakers during his testimony that session. “We’ve lived with this every single day since August 14, 2013.”

Along with the Dyers, another parent I’d met came to share her story. Demeisha Burns had been a recent focus of our coverage, after she hit roadblocks when requesting information about how her own 21-year-old son, Herman Titus, died inside his Travis County jail cell in 2017. KXAN’s efforts to expose the details of that case resulted in another agency releasing the evidence she sought and the county launching a clinical investigation into Titus’ death.

“Because the sheriff’s office delayed releasing details about my son’s death by using this law to deny public information requests, my lawyer dropped my case,” Burns told lawmakers. “I was left without any answers until investigative journalists with KXAN-TV stepped in and discovered what led up to my son’s death.”

Like the agency in Graham Dyer’s case, Travis County cited the dead suspect loophole when denying Burns information.

“I don’t see how a 21-year-old healthy kid who ain’t never had no heart problems can just fall dead,” she said to lawmakers. “(Releasing) just the basic information should be enough, just so we can go to bed at night and not cry our eyes out at night, wondering what happened when you don’t get real answers… and all I have is what KXAN came up with.”

Catalyst documentary and podcast reveal custodial death transparency problems That session, the Combined Law Enforcement Associations of Texas (CLEAT) and other police unions from Austin, Houston and Dallas showed up to voice concerns about how the bill could potentially force agencies to release internal affairs investigations where allegations against officers were not sustained. They were also concerned about the release of evidence surrounding police officer deaths, specifically video in such cases.

“There are families out there are both sides – sides that we’ve heard today that are seeking it for their reasons. There are also families of our officers and families on other ends that don’t want that out there,” said Justin Berry, a member of the Austin Police Association. “Because there’s two perspectives on this issue, I think there’s a better way to make sure we can do this so we’re not having to come back down the road and have to re-address those unintended consequences.”

The measure was eventually stripped from open records legislation late that session, but Moody foreshadowed a future fight, telling KXAN, “We have to demand more of ourselves and our systems.”

‘Uvalde underscores how crucial this is’

Moody re-filed the legislation the next session in 2021, but once again it failed. However, a mass shooting at an elementary school a year later catapulted the issue to the forefront of lawmakers’ minds. 19 students and two teachers were murdered in a Uvalde classroom, and a steady stream of incorrect and incomplete information followed.

“Uvalde underscores how crucial this is: The video you’ve all seen of that incident,” Moody said after introducing House Bill 30 this legislative session, referring to the hallway video at Robb Elementary showing law enforcement inaction. “[The video] is only out there because [House Investigative Committee on the Robb Elementary School Shooting] Chairman [Dustin] Burrows took the courageous step of announcing that he intended to release the video, in violation of the law, to get the truth out. If he hadn’t, it would still be secret today — even for the families whose children never came home that day.”

Moody and transparency advocates had previously expressed concern to KXAN that the loophole would be used to block information related to the massacre because the shooter was dead.

“It’s something that’s been a problem for a long time,” Moody said. “But the need for this bill came into crystal clear focus after Uvalde. So, it’s more urgent now than ever.”

After the shooting, Republican Speaker of the House Dade Phelan tweeted it was “time….to end” the loophole “for good.”

“More than anything, the families of the #Uvalde victims need honest answers and transparency. Period,” Phelan wrote. “It would be absolutely unconscionable to use the ‘dead suspect loophole’ to thwart the release of information that is so badly needed and deserved right now.”

“I think it’s time we pass legislation to end the dead suspect loophole for good in 2023,” he added at the time.

‘Simply waiting’

In the last full week of this session, the bill had progressed to a conference committee to hammer out final details before it could go to the governor – the closest Moody had ever come to changing the law. By Sunday – the day before the session ends – specific wording about requiring consent from all parties related to evidence and concerns over police personnel records had pushed the bill up against the only remaining deadline.

Both Moody and Burrows had been appointed to the ten-member conference committee, and Moody said both chambers had “agreed to the changes that would make this bill operational.” The bill only needed to be brought up for a vote before midnight.

“We’re simply waiting to see what happens,” Moody told us.

The Dyers had also been waiting all week for word about the bill’s possible passage. In a few months, it will be a decade since the death of their son.

Kathy told KXAN they were “surprised, very pleased and extremely grateful” to lawmakers for getting the bill this far.

“It is so heartwarming to know… Representative Moody and others are still adamant about pushing for closure of the loophole,” Robert added. “I must admit, it is still rather difficult thinking about it as the ‘dead suspect loophole.’ But once it has been closed, it will no longer have a name.”