AUSTIN (KXAN) – Every police chief, every sheriff — anyone who heads a law enforcement agency in Texas is now on notice: follow the state’s racial profiling reporting law, or else.

Texas Commission on Law Enforcement Executive Director Kim Vickers sent this letter out to every law enforcement agency informing them of the requirement to file a comparative analysis of racial profiling data with TCOLE by March 1. Vickers sent the letter the day after our interview with him in December 2020.

Just two weeks after our Failure to Report investigation uncovered more than 250 agencies never submitted any racial profiling data between 2016 and 2019, the Texas Commission on Law Enforcement sent warning letters. Those letters serve as official notice to the heads of the state’s local and state law enforcement agencies if they don’t comply, they will be punished.

Our investigation also found TCOLE couldn’t produce a single comparative analysis from any department since the 2009 racial profiling law was modified and ordered TCOLE to collect those analyses.

“They’ve got until March 1st,” TCOLE Executive Director Kim Vickers told KXAN. “Any agency that has not yet reported, we’re sending them a certified letter that explains to them the steps that need to be taken, what they need to submit to us and by what time, and that there will be action taken if they choose to not do so.”

Those certified letters are going out this week, the director said.

Texas’ racial profiling reporting law

It’s illegal in Texas for a department to not submit racial profiling data and the comparative analysis. Chief administrators, as the statute calls them, could lose their peace officer license for “intentionally” failing to submit either set of records.

The cities and counties where an offending agency is located could also be fined up to $5,000. TCOLE confirmed it’s never fined any government agency for failing to comply with the reporting components of the law despite our investigation finding it has happened hundreds — if not thousands of times — in the past.

If the 250 agencies that never submitted the traffic stop data were each fined the $5,000 maximum allowed under the law, those fines would total $1.25 million. TCOLE has not indicated it will pursue enforcement action against those agencies.

“The bottom line is, we weren’t doing exactly what we needed to do. It needed to have been addressed and so we took that opportunity to see where we could do it better and more effectively and that’s the steps we’ve taken,” Vickers said.

The certified letter is the first step to TCOLE making its case a chief administrator intentionally failed to submit the required racial profiling reports.

“I think with the letters that we’re sending out, all the steps we’ve been taking to make sure we really understand what they need to do and what the consequences for not, we can make that case much easier,” Vickers told KXAN investigator Jody Barr.

“The thing that kind of makes that statute a little difficult at times for us to actually act on is it says: ‘intentionally.’ Which is a pretty strictly defined culpable mental state in the statutes. And we’ve got to be able to prove that intentionally before we start taking that action,” Vickers said.

Working on enforcement process

If you’re looking for Texas’ annual racial profiling reports, they’re easy to find. Years ago, TCOLE created a website dedicated to archiving annual reports from every law enforcement agency in Texas, compiling them into downloadable spreadsheets by reporting year.

At the beginning of our Failure to Report investigation, TCOLE’s website instructed law enforcement agencies to submit a “statistical analysis” of its traffic stops. Compared to what the instructions TCOLE’s posted to that same website today, those original instructions look more like a suggestion than something mandated by law.

“All agencies are REQUIRED to submit,” the updated TCOLE website now states. The is instruction is posted at the top of the page and highlighted in yellow.

TCOLE’s updated page also includes a warning of license sanctions and/or fines against the agency for failing to fully comply with the racial profiling reporting law.

The new website also contains a link to a 700-plus word how-to manual to instruct law enforcement agencies on how to perform a comparative analysis. The site also includes an example for departments to follow to ensure the analyses are performed and increase the chances of identifying racial profiling indicators.

“We’re going to do the right thing. We always are trying to do the right thing and if we weren’t doing it exactly right before, then we’re going to fix it and that’s what I told you before that’s what we feel like we’ve done,” Vickers said.

Despite having a notice posted online for the past several years, TCOLE didn’t realize until our interview in December that the law required the agency to collect the analyses. Vickers said in that interview he’d make sure that oversight didn’t happen again.

The day after our initial interview with Vickers, he sent an email to every chief administrator in Texas, notifying them of the law requiring submission of the comparative analysis. In the weeks since then, TCOLE made the changes to its website.

The agency’s also working to detail a process of how to discipline chiefs and sheriffs who intentionally don’t follow the law in the future.

“We determine what we need to do is a lot like we do with noncompliance on training and the statutes are pretty clear on that. If a licensee does not get their training requirements by September 1st, there will be administrative action taken,” Vickers explained. “I don’t see this being a whole lot different than if there is noncompliance and our enforcement division verifies that noncompliance, there will be administrative action taken. The level of which depends on the circumstances.”

The last time the nine-member commission met it voted to suspend 52 Texas peace officer and telecommunicators’ licenses over failing to complete the required continuing education mandate.

TCOLE Executive Director Kim Vickers is working on a process that would provide his agency’s enforcement division a path to begin license sanctions and potential fines for any Texas law enforcement agency that fails to comply with the state’s racial profiling reporting law. The deadline for traffic stop data and comparative analyses is March 1, 2021.

Vickers said the agency will take the same stance when it comes to making sure the state’s 1,600-plus law enforcement agencies that are required to file submit the reports by March 1 each year.  

“I believe that the message that should be there all along, that ‘You’re responsible for this.’ This is statutory, this is something the legislature has deemed something that needs to be done to deal with the issue of racial profiling. The law says you will do this, and you’re expected to follow through on it and as the regulatory agency it is our job to ensure that it gets done and if not then look at what consequences are there with the accountability of it,” Vickers told KXAN.

In our initial interview, Vickers said TCOLE viewed itself as a partner of Texas law enforcement and considered enforcement an avenue of last resort.

“But there comes a time when you’ve done everything you can to help them get to where they need to be, give them what they need to take care of it and if they choose to not do it, then they need to be accountable and that I hope that’s the message that they’re getting,” Vickers said.

“We’re going to help them get to where they need to be and then if they choose to not do so, they have no excuse if we come in and do take action against them, because we’ve done everything we can to help them do it right. We’re going to do the right thing. We always are trying to do the right thing and if we weren’t doing it exactly right before, then we’re going to fix it and that’s what I told you before that’s what we feel like we’ve done,” Vickers told KXAN.