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AUSTIN (KXAN) – It’s never happened in Texas. Never — since passing the state’s racial profiling law in 2001 that required more than 2,700 law enforcement agencies to submit annual racial profiling reports and analysis — has every single one done so.  

Just five months after our “Failure to Report” investigation into the state’s failure to enforce the racial profiling reporting law, the Texas Commission on Law Enforcement reports full compliance with the law. Our investigation found hundreds of agencies did not report raw traffic stop data to TCOLE in just the past four years.

TCOLE confirmed in a response to an open records request filed by KXAN that it also had no records of ever receiving a single comparative analysis of the racial profiling data from any Texas law enforcement agency. State law required TCOLE to collect those analyses since a 2009 change to the state’s reporting law made TCOLE the collection and enforcement agent over these reports.

Those chiefs, sheriffs and constables were never held accountable in the past. That’s changed.

The full compliance in 2021 didn’t come without disciplinary action for 15 police chiefs, sheriffs and constables across the state. Those agency heads each turned their data into TCOLE but did so after the March 1, 2021 deadline.

Those 15 agency heads each received a reprimand letter from TCOLE, which is now part of their permanent record. Those records remain with TCOLE and are public records accessible through the Texas Public Information Act.

“We’re going to do what we need to do and what we’re charged with doing on making sure that these reports get in, and that this is transparent, and that these numbers are available. They’re there for people to see, and that we’re going to stand behind the requirement that it gets done,” TCOLE Director Kim Vickers told KXAN.

Vickers acknowledged in an interview with KXAN investigator Jody Barr last December his agency wasn’t aware of the law requiring TCOLE to collect the comparative analysis of annual racial profiling reporting data. The analysis requires agencies to compare raw race and gender traffic stop data to the population where the stop occurred in hopes of catching and addressing unusual patterns.

“I’m with you — I’m looking at the law. It’s pretty clear that that is the intent to be done there,” Vickers said in December.

The next day Vickers send an email to every Texas law enforcement agency, warning those chiefs, sheriffs and constables of the March 1, 2021 deadline to submit their data and the comparative analysis. The email included a warning of disciplinary action if the deadline is missed.

State law gives TCOLE the authority to suspend an agency head’s peace officer license for 90-days and issue a $5,000 fine against the agency.

In January, Vickers had TCOLE staff reformat the racial profiling reporting portal. The new TCOLE online racial profiling reporting portal will not allow an agency to submit raw racial profiling data without first submitting a comparative analysis of that data.

“What I also hope that they see, especially the agencies out there, is we’re not going to sit here in Austin and — and throw threats around and point fingers. We’re going to make sure they get it done. And, we are going to let them know there will be action if they don’t, and by the same token, we’re going to help you get there,” Vickers said in an interview with KXAN last week.

“That’s the philosophy we work under here and have ever since I came here is: We’re not going to come in pointing fingers. We’re going to come in and help you get where you need to be. Then if we’ve helped you, and you still don’t get there, it’s on you,” Vickers said of issuing the first-ever disciplinary action against a chief administrator over violations of the state’s racial profiling law.

Not only did TCOLE send the warning letter on Dec. 16, 2020, the agency got on the phone and fielded thousands of calls to law enforcement agencies across Texas. Many, TCOLE confirmed, had never performed the comparative analysis before and didn’t know where to start.

“Our Field Services Division and Lieutenant (Gary) Connella, here in the office; thousands and thousands of phone calls, literally, trying to help (local agencies) understand and work through that and visits from our field agents,” Vickers said in detailing the steps his staff took to work toward 100% racial profiling reporting compliance for the first time in TCOLE’s history.  

Vickers sees the number of disciplinary actions as a positive for Texas.

“What it tells me is that most agencies want to do the right thing. Most of these agencies – I don’t believe for a second the only reason we’re 100% is because they were afraid of getting in trouble. I don’t think that’s it,” Vickers said.

Texas’ data is not enough

During our “Failure to Report” investigation, several racial profiling data experts criticized Texas’ racial profiling law. The criticisms centered on the production of data that fails to get to the heart of what the law purports to identify: racist policing.

The Texas profiling law bans profiling of any race and does not limit the law to only protect minorities.

“What exactly can you determine from the data collected in Texas?” KXAN investigator Jody Barr asked University of North Carolina Political Science Professor Frank Baumgartner.

“I would say virtually nothing,” Baumgartner replied.

Baumgartner is widely recognized as an expert in racial profiling analysis across the country.

“There’s a simple solution to all of this: release the micro-level data. Release the data associated with each and every traffic stop —and many states do that,” Baumgartner said. Texas does not require agencies to detail each stop individually, only to aggregate data into an overall data set of all traffic stops within a calendar year.

In North Carolina, for example, details of every traffic stop is released monthly through the North Carolina State Bureau of Investigation, that state’s equivalent of the Texas Rangers and the Department of Public Safety. The North Carolina data also includes a numeric identifier for each officer for each stop.

That identifier is a way for investigators to identify the officer associated with each stop if the need ever arises to review stops once a racial profiling indicator is found. Texas’ racial profiling law prohibits law enforcement agencies from identifying peace officers in annual traffic stop data.

Some Texas law enforcement agencies don’t perform their own comparative analyses of the data. Many hire private consultants to perform the analysis and those consultants are paid by the departments. Texas does not have a system in place where the analyses are performed independent of the department compiling the racial profiling reports.

“The best solution is just release the spreadsheets of the micro-level individual traffic stops, one stop at a time. Let independent scholars, activists, people who support the police, who want to reanalyze the data to question and analysis by some outside actor; the police department themselves can release their own analysis. But, the best solution is complete transparency and outsource the analysis,” Baumgartner said.

“It takes more than just these numbers, to be quite frank.”

Kim Vickers, Executive Director of the Texas Commission on Law Enforcement

Lawmakers also recognized the data produced in Texas’ annual reporting can’t be solely relied upon to figure out whether racial profiling exists. The data alone isn’t “prima facia evidence” of racial profiling, according to Article 2.132 of the Texas Code of Criminal Procedure.

Plus, with each department submitting aggregated traffic stop data, individual officers who may be statistical outliers are “impossible” to identify, according to Baumgartner.

Texas’ law also doesn’t carve out how law enforcement agencies with major highways and interstates should handle the daily influx of travelers and the statistical challenges with comparing those travelers to the population in those jurisdictions.

“Is that going to magically let us see every case of racial profiling and try to do something about it? I don’t think this alone will do that. I think that this problem is more complex than that. And, it’s bigger than that,” Vickers told KXAN last week.

With full compliance for the first time in the history of Texas’ racial profiling law, TCOLE believes the onus of holding local law enforcement agencies accountable is back where the legislature believes it belongs.

“I think that’s where the real work lies is on a on a local control basis; looking at knowing your population, knowing how things work there and seeing what your numbers are, and see if it helps identify problems that you have in your local jurisdiction area,” Vickers said.

The 2001 racial profiling legislation required the state’s law enforcement agencies to file annual profiling data and the analysis of that data to the agency’s local governing body. The 2009 legislative change required TCOLE to become the centralized repository and a one-stop-shop source for the public to access each agency’s racial profiling records.

“As I said, this is the starting point. Now we have 100% compliance, everything is lined up for them and now local control needs to step in and see if they identify an issue there and then decide what they need to do to start trying to deal with that,” Vickers said.