AUSTIN (KXAN) — Legislation that could reform rules and create a civil penalty for law enforcement agencies that fail to submit reports of a person dying in their custody got a hearing Wednesday at a Texas House Homeland Security & Public Safety Committee. However, some in the law enforcement community said they oppose the bill as written.
The bill, HB 2901, authored by State Rep. Eddie Rodriguez, D-Austin, would create a $1,000 per day fine, which could escalate for repeat offenders, for failing to properly submit a custodial death report. The fines would go to the state’s victims’ compensation fund.
Any law enforcement agency that has a death in its custody is required to complete a custodial death report, including in it all facts known or discovered during the investigation, and submit it to the Office of Attorney General. The reports are available online, and there are few other readily accessible public records that detail what happened in the event of the death in custody.
“It is clear that the current enforcement mechanism, which has never been used, is not effective and should be changed,” Rodriguez said at the hearing.
Jackson County Sheriff A.J. Louderback, representing the Sheriffs’ Association of Texas, told the committee his association opposes the legislation as written and would like to talk with Rodriguez about changing some of the language. He said he wasn’t aware of reports not being filed.
“We question here, respectfully, what exactly, where, the problem is, and how we’re going … about trying to fix it,” Louderback said. “I’m not aware of the real issue here.”
The reports are supposed to be filed within 30 days of a death in custody. A KXAN investigation found 372 reports filed later than 30 days from 2015 through 2020. That includes nearly 200 filed late by the Office of Inspector General of the Texas Department of Criminal Justice, which operates the state’s prisons.
The reports are also required to include a variety of information from law enforcement and autopsy results. KXAN found 128 reports that were left pending without a medical examiner’s findings in that five-year timespan. Some were left pending for years.
The penalty for failing to correctly file a custodial death report is currently a Class B misdemeanor punishable by up to six months in jail. KXAN found no record of that charge ever being used in any of the counties where most of the violations occurred.
KXAN Investigator Josh Hinkle testified neutrally on the bill, explaining the challenges with transparency and records his team encountered during its investigation.
Back in 1983, when the law was passed to create the reports, there was no statewide accounting of deaths in custody. Cases “could easily be kept quiet, potentially swept under the rug and away from scrutiny,” Hinkle said.
“From our reporting, we know a custodial death report is an extremely important document for journalists and the families of people who have died in custody,” Hinkle said. “We’re hopeful for a solution to further transparency and accountability.”
‘Doesn’t really have teeth’
KXAN’s investigation used records from the Attorney General’s office and data from Texas Justice Initiative, or TJI, a nonprofit that compiles, analyzes and publishes a variety of criminal justice data its website.
Eva Ruth Moravec, executive director of TJI, said it is “great” that Texas law requires custodial death reports, but they aren’t effective if they aren’t filed or done correctly.
“Because this law doesn’t really have any teeth, as it exists right now, these reports are sometimes missing or wrong,” Moravec said at the hearing. “And there’s little to be done, as it currently exists, as a watchdog organization, to inform or to compel these reports to be fixed or filed, if they’re missing altogether.”
Moravec said that this type of enforcement — notifying agencies and allowing them to submit or correct a report before assessing a fine — is already the law for reports of officer involved shootings, and it has been effective.
Sheriff Brian Hawthorne of Chambers County, speaking in opposition to the bill, said he thought the legislation needed more guidance on supplements to custodial death reports. For example, an investigation could uncover more information after a death report has been filed, but it is not clear exactly what must be supplemented in the report, he said.
According to the bill, if the Attorney General’s Office investigated a claim of an incomplete report and found supplementary information should be included, the law enforcement agency would be notified and given a week to submit it before being fined.
‘Devastating to me’
Rep. Tony Tinderholt, R-Arlington, said he is “about the most pro-law enforcement” member on the committee.
“It concerns me that we’re hearing that there’s so many in custody death [reports] where it’s late, and it’s really easy to do,” he said.
Tinderholt said it would be “devastating to me” if he had a family member who had died, and it was not correctly reported.
“I just want to make sure that if indeed there’s a problem, which I’m hearing there is, that we can get law enforcement involved and try to rectify the problem,” Tinderholt said. “Collecting that data is important, not just for the data sake, but for the families as well. So, I’m hoping that you guys can work together and find language that works.”