KXAN Austin

Lawmakers passed police transparency bill, so why hasn’t it reached the governor?

AUSTIN (KXAN) — A bill passed by Texas lawmakers to make police records less secret appears to have gone missing itself. The unusual way it has stalled before being sent to Gov. Greg Abbott for review has many of the main players involved keeping quiet and KXAN digging into a winding legislative timeline that threatens to derail transparency policy years in the making.

Nearly a week after a final version of House Bill 30 was approved overwhelmingly in both the House and Senate, listed as enrolled online and signed by Speaker Dade Phelan, Lt. Gov. Dan Patrick had yet to sign the measure. This step is a legal requirement in the Texas Constitution before going to the governor to sign or veto.

As unfinished business from the regular session’s final days spilled into a special session with high-profile divisions among those three Republican leaders on other issues, questions are now swarming about the possible fallout to HB 30.

Closing the ‘dead suspect loophole’

As one of the only bills directly related to last year’s Uvalde school shooting that lawmakers passed, HB 30 aimed to close what open records advocates have labeled the “dead suspect loophole.” While its author — Rep. Joe Moody, D-El Paso — made unsuccessful attempts to pass similar measures every session since 2017, the bill saw a surge of bipartisan support following the tragedy that left 19 elementary students and two teachers dead. Because the shooter also died, families, journalists and lawmakers — including Phelan, the bill’s most prominent public supporter — worried the loophole would be used to block the release of records that could shed light on the actions, or inaction, of police.

“More than anything, the families of the #Uvalde victims need honest answers and transparency. Period,” Phelan tweeted shortly after the shooting. “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.”

For decades, Texas law enforcement has used the loophole in an exemption to the Texas Public Information Act, broadly denying requesters details in custodial death cases. The exemption gives police discretion in closed criminal cases to withhold records when a suspect has not gone through the court process — including when that person dies while in custody. KXAN has investigated its widespread use in such cases for years.

“If it’s important, you don’t quit,” Moody said to Phelan on the House floor upon passage prior to the latest holdup. “Thank you for not quitting when it comes to criminal justice reform, for bringing transparency to our systems and for bringing justice to families.”

Beyond Uvalde, families of some of the deceased “suspects” in recent years were also hopeful for passage this session, having fought to understand what happened in their own cases.

“From the past experience, we were not really expecting to get this far with it, so we are excited for it and very hopeful that it will be signed,” said Kathy Dyer, whose son, Graham, 18, died in police custody following a 2013 arrest. “It wears on us going down to testify — it really does. It’s a hard thing to keep revisiting.”

Kathy and her husband Robert shared their family’s story with lawmakers each time Moody introduced the measure, including the most recent session.

“It’s something we feel is very important to do, so it’s worth a little uncomfortableness on our parts,” Robert said.

“It really dismays and surprises me that we’ve had to do this, that KXAN has had to do all the work that you guys have done to cover this,” Kathy added. “It just seems like, you know, it would be something that would be evident that it’s the right thing to do.”

The measure had never made it this far in the legislative process.

What happened to HB 30?

Following continued opposition from law enforcement groups, a conference committee hammered out a final version of the bill to address concerns, and the House and Senate both adopted HB 30 on May 28 — the day before the end of the regular session.

Voting records in the House Journal that day indicate it passed 125-15. A Senate Journal has yet to be posted, but a video recording and other documentation show it passed the upper chamber unanimously 31-0. A source with direct knowledge of the House’s legislative process explained the bill was then sent to the Texas Legislative Council document production division to be enrolled — the stage when a bill is passed in identical form by both chambers and readied for their presiding officers’ signatures.

The May 29 House Journal indicates HB 30 — along with several other bills and resolutions — was signed by Chief Clerk Stephen Brown and Phelan in the presence of the House.

The speaker’s signature — along with the lieutenant governor’s — is required in the Texas Constitution, reading: “The presiding officer of each House shall, in the presence of the House over which he presides, sign all bills and joint resolutions passed by the Legislature, after their titles have been publicly read before signing.”

HB 30 was among 61 pieces of legislation in “Batch Number 37” to be sent to the Senate from the House, according to records Brown provided.

According to the legislative source, TLC staff then took the batch to the Senate for Patrick’s signature but discovered HB 30 missing the next day, May 30, when preparing bills for delivery to Abbott. KXAN has reached out to TLC officials about that timeline but has not heard back.

Senate Journal Clerk Lourdes Litchfield told KXAN in an email: “(The bill) was never delivered back to the Senate. It seems that HB 30 was left in the possession of the House when the Senate adjourned Sine Die on Monday. For this reason, it was not signed in the presence of the Senate.”

Brown provided KXAN a copy of the acknowledgement of receipt for a replacement bill sent to and signed by Senate Secretary Patsy Spaw on May 30. KXAN has reached out to Spaw for comment and is awaiting a reply.

In a statement, Phelan’s communications director, Cait Wittman, reiterated HB 30 was one of the speaker’s “many legislative priorities.”

“(The speaker) was proud to fulfill his constitutional obligation of signing this legislation in the presence of the House,” Wittman continued. “There are several administrative tasks that need to take place after a bill’s passage before it can be signed into law, and House Bill 30 has cleared all of those necessary procedures in the House.”

KXAN also reached out for comment to the offices for Patrick, Abbott, Moody and Sen. Phil King, R-Weatherford — the bill’s Senate sponsor. Moody said he could not speak on the matter at this time. The others have not responded.

For now, it is unclear if the bill still has a path to becoming law. If signed by Abbott, it would have gone into effect Sept. 1.

Has this ever happened before?

A bill signed by a presiding officer following both chambers’ approval then not going to the governor for review is rare. This session — of the more than 1,240 bills enrolled — HB 30 is the only one that had not made it to Abbott’s desk as of Friday, according to a search and analysis of the Texas Legislature Online.

Perhaps the most recent instance before this session was from the first special session of the 78th Legislature two decades ago in 2003, according to another TLO search. Like HB 30 today, two bills back then were left with a final action of “Signed in the House.” Neither bill became law.

However, bills have been sent post-session to the governor in the past. A TLO search of the 87th regular session in 2021 resulted in more than 330 bills with the action “Sent to the Governor” in the 10 days after the session ended. The governor subsequently acted on all of those.

While Abbott does have a constitutional timeline to act on bills sent to him, Legislative Reference Library researchers were unable to find a source specifically addressing a timeline for the chambers’ presiding officers signing bills and sending them to the governor.

On Friday when the Senate reconvened for another special session day, it did not take up HB 30 before adjourning until Tuesday — which would have likely been the fastest and most direct way to move the process along following this hurdle. The bill remained without a Senate signature into the weekend.

Questions remain

A week earlier, HB 30 hit another snag before passage when a stalemate over language adjustments triggered the need for a conference committee to hammer out an agreement. The House appointed its five members earlier in the week, but — as the clock ticked toward the end of the session — three additional days passed before Patrick appointed the Senate’s five members.

Legislative sources told KXAN Patrick had been refusing to appoint that chamber’s conferees despite both sides reportedly reaching an agreement on a final version. Patrick’s office did not respond to a request for comment on the matter. However, just hours after KXAN first reported the holdup, the Senate conferees were posted and the legislative process had resumed.

Now, questions once again linger about the bill’s future. Some close to the process have suggested other controversial priorities and late-session drama were to blame. The House and Senate have yet to agree on a property tax plan — a priority for Abbott. The Senate plan in the special session differs greatly from the legislation in the House, where Abbott has thrown his support, causing perhaps the highest-profile conflict between him and Patrick during their terms in office. Making matters more tense, Phelan has already adjourned the House sine die, forcing the Senate to only accept its plan or return for another special session to continue compromising.

Amid that fight, lawmakers are also proceeding with the impeachment of Republican Attorney General Ken Paxton. The House voted to impeach him just days before the end of the regular session, then appointed 12 members — including Moody — to serve as managers over the trial in the Senate.

Moody’s words when HB 30 hit its previous roadblock also seem to fit its current legislative dilemma: “We’re simply waiting to see what happens.”