Open records bill passes Texas House, added measure would eliminate dead suspect loophole

Investigations

AUSTIN (KXAN) — Texas lawmakers have revived a measure that aims to increase transparency when people die in police custody. A bill to close the so-called “dead suspect loophole” missed its most direct chance to become law after a key deadline passed last week, but its author, Rep. Joe Moody, D-El Paso, secured its language Tuesday as an amendment to Senate Bill 944 — an omnibus piece of legislation that addresses several points in the Texas Public Information Act.

The Texas House passed SB 944 Wednesday afternoon with a 145-0 vote and without any attempts to strip Moody’s amendment. Now, the Senate will have to concur to the amendment or hash the bill out in a conference committee before sending it to the governor’s desk. Open records advocates are watching closely, as fewer than two weeks remain in the session.

Like his original bill, Moody’s amendment to SB 944 would require police to release information in closed cases if a suspect is dead, incapacitated or all parties involved agree to its release.

It is the second legislative session Moody has tried to pass such a measure. He has described the current law as an “unintended consequence” of efforts to protect the privacy of people who were cleared of crimes. Crafted in 1997, it allows law enforcement to withhold information in closed cases that don’t “result in a conviction or deferred adjudication” even if a suspect dies in custody.

Tuesday’s discussion on the House floor detailed the time and effort Moody put into working with police unions that had concerns with early versions of the legislation. In a hearing before the House Committee on State Affairs earlier this session, a handful of such groups voiced concerns with releasing internal affairs investigations where allegations against officers are not sustained. They also had worries about the release of evidence surrounding police officer deaths, specifically video of those incidences.

“Members, it is better for people to know the truth, even if it’s ugly and complicated and challenging, than for the truth to be withheld,” Moody told committee members in February, indicating he would work to address those issues.

The bill was later updated to exclude information surrounding officer deaths and clarified that giving families of deceased suspects access to details during ongoing investigations would not waive an agency’s ability to withhold it later from the public. That change also made its way into the amendment to SB 944.

However, the Combined Law Enforcement Associations of Texas (CLEAT) – the state’s largest police union – continues to oppose one point in the measure. If someone requests a record from an officer’s internal affairs file related to an unsubstantiated misconduct allegation surrounding an in-custody death, the agency would be required to release it. Currently, police can keep such information confidential. 

“No worker, in either the public or private sector, should suffer the humiliation of having unsubstantiated accusations made against them shared in the public,” CLEAT Executive Director Charley Wilkison told KXAN last month. “Working people’s privacy rights are under attack in Texas every day. Police officers are workers, with limited employment rights and should be treated fairly, too.”

But, the grassroots activist group “Austin Justice Coalition” says cases involving police shootings and jail suicides or other instances where a suspect dies in custody are those “where we need accountability most.”

On Wednesday, the coalition sent a mass email asking Texans to contact SB 944 author, Sen. Kirk Watson, D-Austin, to urge him to support Moody’s amendment. SB 944 will “support closure for families and loved ones killed by police,” the coalition said in its email.

Members who support the measure noted during Tuesday’s floor debate the emotional testimony of families whose loved ones had died in police custody. It comes after an ongoing KXAN investigation revealed law enforcement agencies across the state using the loophole to keep such records secret.

“(Releasing) just the basic information should be enough, just so we can go to bed at night and not cry our eyes out at night, wondering what happened when you don’t get real answers,” said Demeisha Burns, who testified during the February committee hearing about the challenges she faced in obtaining details about the 2017 death of her 21-year-old son, Herman Titus, in the Travis County Jail.

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