AUSTIN (KXAN) – When we decided who to ask about correcting the problems we uncovered inside the Texas Commission on Law Enforcement’s handling of the state’s racial profiling law, the first stop was the Texas Sunset Advisory Commission.

The commission is in the middle of deciding whether TCOLE will exist after the legislative session gavels to a close this summer. State agencies undergo Sunset review once every decade and if the legislature fails to pass a bill to continued an agency, it’s eliminated by an effect of law.

TCOLE is one of 19 agencies under review right now.

“I have to say a little bit, it’s not surprising. There are definitely major issues that we are addressing and we will address,” said Rep. John Cyrier, a Republican from Lockhart. Cyrier, who chairs this session’s Sunset Advisory Commission, reviewed the findings of our “Failure to Report” investigation, uncovering oversight lapses in TCOLE’s collection of racial profiling reports.

The racial profiling data is an annual collection of the race, ethnicity and gender of drivers involved in traffic stops across the state. The law, passed in 2001, requires every law enforcement agency in Texas that routinely conducts traffic stops to report traffic stop data to TCOLE by March 1 of each year.

The law also requires Texas law enforcement agencies to perform comparative analyses of that data. The purpose of these analyses are to ensure agencies aren’t simply collecting data and reporting the numbers to the state without first investigating whether indicators of racial profiling exist.

Our investigation found 257 local law enforcement agencies did not submit annual racial profiling data to TCOLE since 2016. We also found TCOLE doesn’t have a single comparative analysis on record from any law enforcement agency in Texas — including the state’s largest law enforcement agency: the Texas Department of Public Safety.

TCOLE has exclusive authority to punish law enforcement chief administrators for “knowingly” failing to comply with the law. Non-compliance carries a fine of $5,000. TCOLE confirmed to KXAN the agency’s never disciplined or fined a chief administrator for failing to turn in racial profiling data or a comparative analysis.  

“It’s very disappointing. There are things we have found, others have found; quite frankly the director has admitted to. He knows it’s broken, and he’s been saying this for quite some time,” Cyrier told KXAN.

TCOLE’s director, Kim Vickers, acknowledged his office wasn’t aware the law required TCOLE to collect the comparative analyses. A 2009 enhancement in the state’s racial profiling law required TCOLE to collect the comparative analyses and gave TCOLE authority to enforce it.

In December 2019, TCOLE released 136 pages of records to KXAN in response to an open records request seeking copies of any comparative analysis submitted to TCOLE. The agency confirmed to KXAN last week it had not “been mandating” law enforcement agencies submit the analyses, although the law has required it for more than a decade.

TCOLE completed its self-evaluation report and turned it into the Sunset Advisory Commission in September 2019, detailing what the agency found to be its most pressing problems. Of the six “major issues” identified by TCOLE, none of them dealt with its failure to enforce the state’s racial profiling reporting law.  

A report published by Sunset staff in November 2020 referred to TCOLE as “toothless” in its regulation of law enforcement and its oversight authority when it comes to sanctioning peace officer license holders. However, the same report stated TCOLE isn’t toothless when it comes to its ability to enforce Texas’ racial profiling law.

“TCOLE is only authorized to issue administrative sanctions for noncompliance in a few narrow circumstances, such as failing to submit a report on racial profiling,” the November 2020 staff report shows.

“If it is failure to act, how do you fix that?” KXAN investigator Jody Barr asked Cyrier.

“Through this process (Sunset). And, no, it’s definitely a failure to act and they weren’t doing the responsibilities the legislature told them to do and what was in the best interest of all Texans,” Cyrier said.

“Obviously, this will be a big part of it, racial profiling. The lack of oversight from TCOLE, but again, it’s one of many areas that we’re seeing that needs to be fixed,” Cyrier said.

Vickers argued the reason TCOLE has not strictly enforced the racial profiling law is because the agency wanted to “be fair” to smaller law enforcement agencies who might lack the ability to perform analyses of their own racial profiling data.

“Are we the regulatory agency? You bet. Can I hammer people that are put in that position because they didn’t comply with this? Yeah, I could. Is that the right thing to do? Is it fair, and right?” Vickers asked.

“We need to be more diligent on that. You have really made me look at that — we need to be more diligent and we will look at that,” Vickers told KXAN.

The day after our interview with Vickers in December, he sent every law enforcement agency an email telling those agencies the analysis for 2020 is required to be submitted to TCOLE by March 1. The language in Vickers’ email has been posted on the TCOLE site since 2019 and has been part of the racial profiling law since 2009.   

The result of the Sunset process is to produce legislation aimed at correcting problems identified in the staff reports. Cyrier said he is the lawmaker who will introduce and work to pass new TCOLE legislation this session. Racial profiling would now be included in that discussion, he said.  

“It’s no question in anybody’s mind that it’s broken, and we need to do a complete overhaul of our law enforcement in the state of Texas,” Cyrier told KXAN.

Investigative Photographer Ben Friberg, Graphic Artist Rachel Garza, Editor Eric Lefenfeld, Director of Investigations & Innovation Josh Hinkle, Digital Special Project Developer Robert Sims, Digital Executive Producer Kate Winkle and News Director Chad Cross contributed to this report.