AUSTIN (KXAN) – Texas police no longer have discretion to withhold records when someone dies in their custody. A new law took effect Friday, closing the state’s dead suspect loophole – an “unintended consequence” of an exception to the Public Information Act initially meant to protect the privacy of suspects who never go through the court process.
Rep. Joe Moody, D-El Paso, filed legislation each session since 2017 to end the loophole, which KXAN investigators revealed has been used widely by police across the state for years to keep certain details about deaths – including audio and video – secret. In the most recent regular session, the measure received renewed, bipartisan support following the deadly mass shooting at an elementary school in Uvalde.
While it faced a late-stage battle between the two chambers and their leaders, the bill ultimately passed and made it to Gov. Greg Abbott’s desk. The governor chose not to sign the bill but instead allowed it to become law without his signature. Some say that move signaled continued controversy that promises to spill into future sessions and possibly even court. Abbott’s office has not responded to KXAN’s requests for comment about the bill.
Moody spoke with KXAN Investigator Josh Hinkle about the new law going into effect following the station’s continued coverage and why he believes he and other advocates still have work to do surrounding police transparency.
Moody: Once people found an avenue to keep information secret, they utilized it, and I don’t put it past anybody to continue to try to find wiggle room in the law that was passed. And we’ll just have to see how that unfolds.
Hinkle: What do you do with those law enforcement agencies that refuse to follow this law, or who’s even checking to make sure that the law is being followed properly?
Moody: I think there’ll be a number of requests that go forward after September 1 to test it, to see who’s going to follow the law and who’s not. And to those who want to continue to shield this information from the public and not follow the law, then my message is very clear: we will see you in court.
Hinkle: Perhaps the largest opponent of this legislation over the years has been the police unions throughout Texas. Do you have any indication of how they feel with how things turned out?
Moody: It would not surprise me that they would be in the middle of challenging this going forward … I think they’ll probably fight it. You know, it’s something they don’t agree with, and so my guess is we’ll probably see more litigation around it. But the message is clear that people deserve to have this information, and sunlight on these bad situations is a good thing.
Hinkle: Is there anything you would like to do to continue to strengthen this law in a future session?
Moody: There was a second lesser portion that the Senate excluded and refused to put back into it, that had to do with internal records or notations. Now, I don’t think that applies to the information that we’re really after. But could a law enforcement agency turn around and stamp everything as an internal record and try to create a new loophole because that provision didn’t end up in the bill? Probably. I think they could probably try to go that path … And so we’ll see how law enforcement entities deal with that in the next two years … if it’s still being exploited – and is able to be exploited in the way that we saw in the past – then we are in no unnecessary terms have to come back and close that last provision.
Hinkle: As this law goes into effect, is there anything else you’d like to say?
Moody: I really do want to thank the families who had to continue to relive the horrors of losing their loved ones. And coming and telling those stories and essentially re-traumatizing themselves over and over again. But they were doing it because they knew it was the best thing going forward so that other people wouldn’t have to go through that. And I want to thank those who are, you know, in the media who talk about how important this is for public information to shine a light on very tragic circumstances … yourself and others that have been dogged in their approach to this and saying, ‘This is information that belongs to the public’ – and making sure that it was in the forefront of people’s minds … This is a benefit for the public to understand what the government is doing in the most tragic of circumstances … this is a good example of how keeping the faith and working on it session after session, year after year – you can get to the result that is best for all Texas.”