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After Uvalde, Texas Could Fix Notorious Flaw in Public Information Act

A tragedy like the Robb Elementary shooting of May 24 leaves its mark in many places. There are the homes that will always feel empty and the schools all over the nation that feel less safe than before. There are the parents who find themselves unwilling activists and the government officials who, thanks to that dark day’s botched police response, find themselves distrusted. And there’s a reinvigorated debate over gun control—though our state’s leaders will likely stop up their ears. Now, the legacy of Uvalde could also include something a touch wonky and seemingly far-removed: the closure of a gaping hole at the heart of Texas’ public information law.

In November, state Representative Joe Moody, an El Paso Democrat who served on a committee that investigated the Uvalde killings, filed House Bill 30, a multifaceted measure that would close what’s called the “dead suspect loophole.” Under current law, Texas cops and prosecutors may withhold from the public many records stemming from investigations that did not result in a conviction. This statute arguably protects the reputations of innocent Texans, but it also casts a veil of secrecy over cases where there’s no conviction because the suspect is deceased—including when cops kill someone during an arrest, or a person dies in jail, or a school shooter’s rampage ends, as happened at Robb Elementary, with his own demise. Moody’s bill would specifically open up many cases where the lack of a conviction resulted from a suspect’s death.

Since May, state police have withheld records such as video and audio recordings from the Uvalde scene on the premise that the local district attorney is still investigating—a standard reason that agencies hold back much detailed information. Under the dead suspect loophole, however, those records can plausibly be kept secret forever. HB 30 would head this off.

Crosses are surrounded by flowers and other items at a memorial at Robb Elementary School on June 9, 2022 in Uvalde, Texas.
Thanks to the “dead suspect loophole,” police could withhold video and audio recordings from the Uvalde massacre forever. AP Photo/Eric Gay

“I certainly respect the investigatory process, but at some point you turn the corner and the public deserves to scrutinize the records, and that is at the heart of the Public Information Act,” Moody told the Observer. “The government doesn’t get to decide what is good for us to know and what is bad for us to know.”

In June, GOP Speaker of the House Dade Phelan tweeted support for closing the dead suspect loophole in Uvalde’s wake, and a spokesperson confirmed in early December that the speaker continues to support such a policy though he is “not yet familiar with the specifics of legislation that has been filed.”

In its present form, HB 30 would also expand public access to information about police misconduct in general and to videos of jail deaths or shootings by police, along with creating a public database of reports related to such shootings, among other provisions.

Next year’s legislative session, to begin in January, will mark the fourth time that Moody has tried to close the dead suspect loophole. In past sessions, discussion of his bills centered on prominent cases in which Texans were shot on their porches, tased in the back of squad cars, or left to perish in jails. Moody nearly succeeded in closing the loophole in 2019—with help from a contingent of small-government Republicans open to criminal justice reform—but he was derailed by a last-minute, scorched-earth campaign from the Combined Law Enforcement Associations of Texas (CLEAT), the state’s largest police union, in a fight that left the El Paso lawmaker and the lobbying powerhouse as bitter adversaries.

“I certainly respect the investigatory process, but at some point you turn the corner and the public deserves to scrutinize the records.”

Transparency advocates hope that Uvalde will make the difference this time around, but they won’t be getting any help from CLEAT. “Just like it has been in the past, this is a George Soros-funded fishing expedition that seeks to tear down our profession by false innuendo,” said CLEAT spokesperson Jennifer Szimanski, homing in on parts of the bill dealing with police personnel files. “We’ll definitely be fighting this piece of legislation.”

Szimanski—who also said of the bill: “This is ‘defund the police’”—added that there was likely no path for her group and Moody to discuss any compromise because “the author of this bill has not contacted us since 2019.”

Moody countered that his bill is “properly tailored” to only target information in police personnel files necessary to shed light on misconduct and specific incidents including ones involving dead suspects. “This is a serious policy. It’s not political grandstanding, but the people of that organization are completely disingenuous,” he said of CLEAT, adding that he has not received backing from George Soros, the Hungarian-American billionaire—often used as a bogeyman by the political right—who’s funded criminal justice reform efforts in recent years.

In addition to overcoming CLEAT, Moody would also need acquiescence from archconservative Lieutenant Governor Dan Patrick, who controls the state Senate, and freshly reelected Governor Greg Abbott, who wields the veto pen and may harbor presidential ambitions. Neither responded to requests for comment for this article.

The road that led to the dead suspect loophole winds back through five decades.

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In 1973, in the wake of the Sharpstown stock fraud scandal that shook the state, the Legislature succumbed to a rare bout of good governance in passing what was then called the Texas Open Records Act. The statute, one of the nation’s strongest transparency measures at the time, made an exception for law enforcement records. But Texas’ attorneys general, who interpret and enforce the law, quickly decided the carveout only covered active investigations. Once a case file was closed, agencies had to release information unless they could prove it “unduly” interfered with law enforcement. This status quo stood for roughly two decades.

Then, in 1996, Harris County District Attorney Johnny Holmes—aggrieved at least in part by the work it took to fulfill record requests—successfully challenged the provision in a case styled Holmes v. Morales. The Texas Supreme Court ruled the open records law made no distinction between open and closed files and suggested the Legislature clarify its intent. In the meantime, law enforcement agencies could now withhold both open and closed case records.

Democratic state Representative Joe Moody is reinvigorating the effort to close the so-called “dead suspect loophole” in Texas’ open records law. AP Photo/Eric Gay

The following year, Democratic state Representative Harold Dutton and then-GOP Senator Jeff Wentworth carried identical bills to reinstate the pre-Holmes status quo. The proposal drew bipartisan support but got pushback from district and county attorneys. Late in the session, Wentworth took to the Senate floor and explained that, following a flood of faxes and letters from prosecutors, he’d worked out a revision to his measure: Rather than free up all closed case files, he was going to let law enforcement keep secret any without a conviction.

Wentworth explained the reasoning: “If somebody calls the police department and leaves some information that’s scandalous but not true and it’s discovered that it’s not true … that file would stay closed; it would not be subject to the open records act,” he said. The amendment, approved near-unanimously, birthed the dead suspect loophole.

For the next 10 legislative sessions in a row, Dutton, whose own bill died on the House floor in ‘97, carried legislation trying to undo Wentworth’s prosecutor-friendly exception to no avail. Meanwhile, the seemingly innocuous carveout grew into a yawning pit, as cops and prosecutors increasingly withheld files in cases without a conviction including when the suspect had died.

Before the late ‘90s, “a Texan could be as proud of the state’s open-records laws as she could its well-maintained highways back in the day,” quipped long-time criminal justice reform advocate and blogger Scott Henson in 2016. “On open records these days, we’re considered middle-of-the-pack or worse. And let’s please not speak of the roads.”

The term “dead suspect loophole” was first popularized around 2018 when the Austin TV station KXAN and the libertarian outlet Reason published investigations on its use. That year, Reason identified thousands of instances between 2003 and 2018 when records were withheld because there was no conviction in the case, including 81 in which someone died in law enforcement custody.

Reason identified thousands of instances when records were withheld because there was no conviction in the case, including 81 in which someone died in law enforcement custody.

Perhaps the most high-profile illustration of the harm caused by the loophole is the case of the Dyer family. One night in 2013 in Mesquite, 18-year-old Graham Dyer, who was high on LSD, died shortly after being arrested and taken to jail. His parents tried to acquire video from that night but were stymied by the loophole. The parents then convinced the FBI to consider the case as a possible violation of their son’s civil rights, and even though this led to no federal charges, the Dyers were able to obtain the videos in 2015 from the FBI—because there is no dead suspect loophole in the federal Freedom of Information Act. The parents discovered that police had tased their son in the testicles and that he’d been left on a concrete floor at the jail as he banged his head on the ground. These facts had been omitted or misrepresented in the basic incident report that Mesquite police had released. The Dallas County district attorney said there was enough evidence to charge the cops, but the statute of limitations had passed.

For Henson, the advocate and blogger, the best policy solution to this problem would be to completely abolish the exception for all conviction-less cases, not just for those in which a suspect died—in other words, to return fully to the pre-1997 status quo. “The criminal justice exception problem is vast, and just fixing the so-called dead suspect loophole would correct this narrow sliver of it,” he told the Observer, noting that there are plenty of law enforcement actions that merit public scrutiny even though no one died.

But Moody, the El Paso Democrat, said that “fine-tuning” the law by just freeing up the dead suspect case records is the better and more “politically viable” approach.

Of course, political viability in Texas depends more on what Republicans think than Democrats. Moody has the House speaker and what remains of a fairly ineffectual block of reform-minded Republicans on his side, but the path through the Senate and the governor’s desk is murky at best. With the Uvalde tragedy, Moody at least has a fresh and haunting example of his policy’s purpose. In the past, cases like that of the Dyer family and other Texans effectively murdered by the state weren’t enough to make the Legislature buck entrenched law enforcement interests. Perhaps, though, the secrecy that’s marred our state since that horrific day at Robb Elementary will convince our leaders to let some sunlight back into government.


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