AUSTIN (KXAN) – Two police transparency bills filed in recent days would close the so-called dead-suspect loophole, which allows agencies to keep many records of a death in custody secret, and reform the laws for enforcing the reporting of those deaths.

In recent years, KXAN has investigated and uncovered problems with both the loophole and custodial death reporting laws.

Two House Democrats filed the bills. State Rep. Eddie Rodriguez of Austin filed the custodial-death reporting bill, HB 2901, on March 4. It would provide a complaint process, uniform enforcement under the Office of Attorney General and a civil fine for failing to follow the law.

State Rep. Joe Moody of El Paso submitted the transparency and loophole law, HB 2383, on Feb. 26. Moody’s legislation includes several other police transparency provisions.

“The government has done too much in the dark for too long, and when it takes a life or harms someone, Texans have a right to answers, not secrets,” Moody said in a statement. “What I’m fighting for is the truth, plain and simple, and I believe the people are entitled to it.”

Dead-suspect loophole and record police transparency bill

The dead-suspect loophole allows law enforcement agencies to permanently withhold public information — like body or dash camera video — if someone dies in their custody. The rule exists because most criminal records associated with a case that has not resulted in a conviction or deferred adjudication can be withheld. The case of a suspect who dies in custody will never be completed, therefore those case records aren’t public.

KXAN dug into the dead-suspect loophole, and how it has affected families of people who died in custody, in our investigation DENIED.

Rep. Joe Moody, D-El Paso, filed House Bill 2383 – an omnibus police transparency measure aimed at closing the state’s dead suspect loophole, creating a public database for use-of-force reports, requiring the release of video of “critical incidents” like officer-involved shootings and custodial deaths within 60 days of the incident except in certain circumstances, making requests for body camera video simpler, and preventing sustained disciplinary records from being hidden in an officer’s personnel file – among other items addressed in the legislation. (KXAN Illustration)

Moody’s bill would address the loophole and more. Here is a breakdown of the major points in his legislation:

  • Closes the dead-suspect loophole
  • Creates a public database for publicly released reports on use-of-force incidents by, and against, officers
  • Clarifies existing law that a variety of force reports and officer vehicle accident reports are public information
  • Makes “basic information” about criminal investigations, including investigations into officer-involved shootings, public
  • Requires the release of videos related to “critical incidents” like officer-involved shootings and deaths in custody within 60 days of the incident but provides some procedures for withholding or redacting in certain circumstances
  • Prevents sustained disciplinary and related records from being hidden in an officer’s (g) file
  • Makes the request and release of body-worn camera video simpler

Moody advanced similar bills in the past two legislative sessions. He faced opposition from powerful police unions, and the bills didn’t pass.

Custodial-death reporting

Every law enforcement agency in Texas is required to file a custodial death report with the Office of Attorney General within 30 days of a death in their custody. These records are public and available on the Attorney General’s website. The report database provides the most comprehensive collection of in-custody deaths available.

But the reporting system has problems.

Rep. Eddie Rodriguez, D-Austin, filed House Bill 2901 aimed at giving the Texas Attorney General’s office the ability to investigate, send notices, fine and sue when it receives a complaint a police agency has failed to file the required report when someone dies in their custody. (KXAN Illustration)

A KXAN investigation of the reports found hundreds of instances of law enforcement agencies filing the forms late or incompletely. The penalty for failing to file the report correctly is a Class B misdemeanor, but KXAN found no record of any prosecutor ever charging a law enforcement official with that crime.

Rodriguez’s office said they consulted with nonprofit Texas Justice Initiative and the Texas District & County Attorneys Association on reforming the law. Here’s a full breakdown of the bill’s proposed changes, provided by Rodriguez’s office:

  • Replace the current enforcement mechanism (criminal offense – Class B misdemeanor prosecuted by district or county attorneys) with a process based on that established by then-State Rep. Eric Johnson’s bill on officer involved shooting reports in 2017 (HB 245 – 85R).
  • The process will be adapted to apply to law enforcement agencies, jails, correctional facilities and state juvenile facilities.
  • The process prescribed under Article 2.13951 of the Code of Criminal Procedure works as follows:
    • The OAG developed and made publicly available a form for reporting to the office an assertion that a law enforcement agency failed to submit a required report.
    •  If the OAG determines that the law enforcement agency failed to submit the report, the OAG provides notice of the failure to the agency.
    • The notice must summarize the applicable reporting requirement and state that the agency may be subject to a civil penalty.
    • A law enforcement agency that fails to submit the required report on or before the seventh day after the date of receiving notice is liable for a civil penalty in the amount of $1,000 for each day after the seventh day that the agency fails to submit the report.
    • The penalty is escalated to $10,000 for the first day and $1,000 for each additional day that the agency fails to submit the report if a law enforcement agency has been liable for a civil penalty under this process in the five-year period preceding the date the agency received the notice.
    • The attorney general may sue to collect this civil penalty. A civil penalty collected under the process is to be deposited in the victims of crime fund.
  • The bill will also establish an explicit requirement that a reporting entity amend a custodial death report upon completion of its investigation of the death with any relevant facts discovered in the investigation.

Eva Ruth Moravec is executive director of Texas Justice Initiative. TJI collects and publicly displays Texas criminal justice data, including a regularly updated database of custodial deaths and officer involved shootings.

“I have seen the impact of the oversight that was added to the officer-involved shooting law, and I am hopeful that a similar process would only benefit our collection of custodial death reports as a state,” Moravec said. “I don’t think we will get to those penalties very often at all. I think that simply having a way to notify these agencies that a report is in fact due will be powerful in itself.”

Both bills are now awaiting assignment to a House committee for a hearing.