AUSTIN (KXAN) – Texas’ “Dead Suspect Loophole” could be used to block the release of law enforcement records related to last week’s school shooting in Uvalde that left 19 children and two adults dead, transparency advocates and lawmakers fear.
For years, investigators from Nexstar’s KXAN in Austin have explored Texas law enforcement’s widespread use of an open records measure known as the “Dead Suspect Loophole.” Lawmakers have repeatedly sought to close the loophole, which allows police to withhold information in closed criminal cases that don’t go through the court process — even when a suspect dies in police custody.
After the Uvalde school shooting and the gunman’s death, some transparency advocates — even Texas House Speaker Dade Phelan — worry police may try to use the loophole to keep important details about what really happened from the public and even victims’ families.
Outside the entrance to the Texas State Capitol, there is a growing memorial of flowers, candles and stuffed animals. The faces of fourth-graders murdered in Uvalde line the steps.
“It’s so sad,” said Kelley Shannon, looking at the photos. “I hope that these families and the community of Uvalde get the transparency that they need and deserve.”
Shannon is the executive director of the Freedom of Information Foundation of Texas. She says families deserve answers and accountability, especially given the shifting explanations coming from law enforcement.
“I think what everyone’s realizing is we definitely need this transparency in Uvalde,” she said.
She worries the “Dead Suspect Loophole” could be used to block the release of records that could shed light on how law enforcement responded that day. She has seen law enforcement agencies deny records citing the loophole, even to family members.
“We’ve had all kinds of families come to the Capitol and explain how they could not get simple, basic police records,” said Shannon. “Because their loved ones died in police custody.”
The loophole was used to keep records related to Javier Ambler’s 2019 death in the custody of Williamson County Sheriff’s deputies secret for 15 months. The family of 21-year-old Herman Titus, who died at the Travis County Jail in 2017, struggled for years to get any information about his death.
In the last three legislative sessions, State Rep. Joe Moody (D-El Paso) filed bills to close the loophole. Those efforts failed.
“The intent of the bill isn’t to cause any issues in an active case,” he said during a 2018 hearing. “What we’re dealing with are closed cases that fall into an exception that they shouldn’t have.”
“These records belong to the public,” he said during a 2019 hearing with then Chair Dade Phelan. “Government transparency is government transparency. Even when it’s not pretty.”
Moody — who was just appointed vice-chair of the Investigative Committee on the Robb Elementary Shooting — said the original intent of the exception to the Public Information Act, put in place in 1997, was to protect people under investigation. Police unions across the state have fought changes to the law.
“This situation crystallizes why we need to close this loophole, right?” he said. “This shouldn’t even be an option.”
The revived idea to close the loophole is getting support from Phelan, the Republican Speaker of the House. On Twitter, he called it “common sense.”
“More than anything, the families of the #Uvalde victims need honest answers and transparency. Period,” Phelan tweeted Wednesday. “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,” he added.
Moody responded that it is time to “end the abuse of this loophole once and for all.”
State Rep. Eddie Morales Jr. (D-Eagle Pass) also tweeted interest in ending the loophole.
“I’ll have my Capitol staff look into this and work with Lege Counsel to find ways to address the loophole,” he tweeted, “or end it thru the filing of a bill.”
“There are a lot of questions that have to be answered in that community,” Moody told KXAN. “Those families deserve answers.”