‘Dead suspect loophole’ bill clears Texas House committee

Texas

AUSTIN (KXAN) — After weeks of behind-the-scenes policy scuffles between Texas’ largest law enforcement union and a high-ranking state lawmaker, a House panel voted Monday in favor of a bill aimed at increasing police transparency when suspects die in custody. It comes after an ongoing KXAN investigation revealed law enforcement agencies across the state using a loophole in the Texas Public Information Act to keep such records secret. 

Rep. Joe Moody, D-El Paso, who also serves as second in charge of the chamber in the role of Speaker Pro Tem, first brought House Bill 147 before the State Affairs Committee in February. His bill would require police to release information in closed cases if a suspect is dead, incapacitated or all parties involved agree to its release. 

Moody 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.” 

“(It) closes a significant loophole in our public information law that’s had tragic consequences for Texas families and Texas transparency,” Moody told committee members. “The unintended loophole is this – in cases in which a person dies, like a police shooting or a death in-custody, there’s obviously never a conviction or any plea at all. That makes all records about that death confidential forever.” 

That can be especially concerning for some when suspects die in custody. Because they will never progress through the court system, details in their cases can be withheld permanently. 

Families fight 

“Our son was not convicted. He was killed. He died,” Kathy Dyer explained to the committee in February. She and her husband Robert shared the story of their son, Graham, 17, who died in the custody of the Mesquite Police Department in 2013, following a public intoxication arrest. 

Citing the loophole, the City of Mesquite refused to release video of the incident to Graham’s parents. But years later, they found a backdoor way to obtain the footage through the FBI. It showed a police cruiser pulling over, as Graham continuously hit his head. Officers held him down while repeatedly shocking him with their stun guns. They can be heard telling him to “chill out” and “calm down.” One officer punches him and says, “I’m going to kill you.” 

The city had previously maintained no wrongdoing by its officers and has declined interview requests made by KXAN. The Dyers have since proceeded with an excessive force lawsuit against one of the officers involved. 

“I hope it was an unintended consequence of the law that information would be kept from families this way, but I do think there will be opposition from law enforcement,” Kathy Dyer said. “I’m not surprised there would be strong opposition from law enforcement.” 

Police pushback 

During the hearing, the Combined Law Enforcement Associations of Texas (CLEAT) and other police unions from Austin, Houston and Dallas voiced concerns about how the bill could potentially force agencies to release 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, indicating he would work to address those issues. The bill has since 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. 

But one point has continued to draw opposition from CLEAT in the weeks to follow. 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. 

In emails obtained by KXAN from late March, Chris Jones, a retired Houston police officer who works in CLEAT’s public affairs division, wrote Moody’s office, asking for language in the bill that would shut out public access to those internal affairs records. 

“Can we get there short of releasing everything to the public?” Jones said. “If the goal is to let the lawyers get their hands on everything that can be used to trash the officer or the department, then of course we have some concerns.” 

Moody later replied to CLEAT that he was “certainly extremely sympathetic to families affected by the death of a loved one, but the bill isn’t only about them. The primary purpose is release to the public.” 

CLEAT Executive Director Charley Wilkison told KXAN his group is “done talking” with Moody’s office about the bill and feels “completely misled” about its intent. He called the measure a “war against the police.” 

“No worker, in either the public or private sector, should suffer the humiliation of having unsubstantiated accusations made against them shared in the public,” Wilkison said. “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.” 

Moody told KXAN that Wilkison’s response to the bill was “disappointing, and frankly, dishonest.” 

“This bill has always been presented as an open records measure, from several stakeholder meetings that included CLEAT to the committee hearing itself,” Moody said. “Those are simply the facts and part of a public record that’s indisputable. I also want to be very clear that I’ve always been a strong ally of law enforcement – even now, I’m advancing legislation to protect first responders from employment discrimination, expand the statute of limitations for aggravated assault of an officer, and create a grant program to raise peace officer wages—and our finest can count on my continued support because it’s the right thing to do.” 

HB 147 now moves to the Calendars Committee ahead of consideration by the full House. With just a few weeks before key deadlines pass, the bill is still ahead of the timeline a similar piece of legislation – also authored by Moody – followed in 2017. That bill stalled in the final days of the last session and never made it to the floor for a vote. 

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