Unfounded complaints against police, jailers would be secret in Texas. Is that OK?

FORT WORTH, Texas — Civil rights advocates who oppose a pair of bills in the Texas Legislature meant to protect law enforcement officers from unsubstantiated complaints of misconduct say the bills would also stymie efforts for transparency.

Police, public officials and legislators who support the bills say they will protect officers and agencies from reputational harm due to unfounded claims of misconduct.

SB 781 and its companion bill HB 2486 would compel law enforcement agencies to create a “department file” for each officer that would contain reports of misconduct “for which the agency determines there is insufficient evidence to sustain the charge of misconduct.”

The bills exempt an officer’s department file from being released “to any other agency or person” under the Texas Public Information Act with two exceptions. The file can be viewed by another law enforcement agency looking to hire an officer or by the Texas Commission on Law Enforcement when it is investigating an officer. But an outside agency such as the Texas Rangers would not have access to unsubstantiated claims of misconduct by jailers when investigating a death in the Tarrant County jail.

Records related to substantiated charges would still be considered public documents.

The Senate bill was written by state Sen. Phil King, whose district includes much of southern Tarrant County. The House bill was written by state Rep. Cole Hefner of Mount Pleasant, about a 2-hour drive east of Dallas.

Hefner has framed the bill as a statewide extension of a provision of civil service protections already in place in over 130 Texas cities. Criminal justice reform advocates say that provision has disrupted efforts for transparency in local law enforcement agencies and that expanding it to all state law enforcement agencies would hamper independent investigations into jail deaths.

What effect could SB 781 and HB 2486 have on jail death investigations?

Law enforcement agencies would have to create department files on any employee holding a Texas Commission on Law Enforcement license, which includes police, sheriff’s deputies, constables, corrections officers and others.

A department file on jailers would hinder third-party investigations into jail deaths, according to jail reform advocates.

The 2017 Sandra Bland Act requires the Texas Commission on Jail Standards to appoint outside law enforcement agencies to investigate deaths in county jails. These bills would block the commission and investigating agencies from viewing anything in a jailer’s department file.

Krishnaveni Gundu of the advocacy group Texas Jail Project called the bills an “erosion of transparency and oversight, what little we have.”

The threshold for substantiating complaints against jailers is high due to the public’s reluctance to believe incarcerated people, she said.

“It’s very, very hard for complaints and grievances to be founded, but that doesn’t mean that it’s not useful to have access to the files where you can see a pattern of complaints in the past,” she said. “Even if they’re unfounded, the fact that you have 10 complaints against a jailer is valuable information when you get to a lawsuit.”

Kathy Mitchell of the Austin-based advocacy group Equity Action said the bills create a “black box” for jails to hide allegations of misconduct, which erodes efforts to ensure transparency, such as the Sandra Bland Act.

A Star-Telegram investigation from February found that the jail commission had been violating that law since it went into effect. The commission began appointing third-party agencies to investigate jail deaths less than a month later.

“Making these investigations independent of the agency themselves, so they’re not investigating themselves, and then requiring that something get reported out from that independent review, that’s been hugely important,” Mitchell said. “Now they’ve come forward and said, ‘OK, we’ll start enforcing that,’ and just in that moment, now we’re going to say no other agency or person can have documents.”

Faith Bussey is a longtime conservative activist who began advocating for jail reform after her friend Mason Yancy died in the Tarrant County jail in December. She recently sent suggested amendments to the bills’ authors.

She recommended they change the bills to allow the jail commission, prosecutors, civilian oversight boards and other appointed and elected investigators access to department files.

In committee hearings, King and Hefner appeared to misunderstand their bills’ applicability to corrections officers.

King stated at a Texas Senate Justice Committee hearing in March that he did not think his bill applied to jailers, but corrected himself after Gundu, Bussey and others testified.

In a Texas House Homeland Security Committee hearing that same week, Hefner, who chairs the committee, said the bill only aims to expand a local government statute already in effect in 135 cities across the state.

Cities that meet certain population and agency requirements must vote to opt into Chapter 143 of the Local Government Code. Among the civil service protections it entails is what is known as the “g-file” for police officers, which contains misconduct complaints determined to be unsubstantiated and correlates to the department file the bills aim to create. Hefner asked advocates why they expect issues with his bill if the cities with this policy are not having them.

Jail reform advocates say there is not a direct comparison between the statute and the bill when it comes to jails.

Gundu made the distinction that the local government code does not apply to county jails. Bussey noted in an email exchange how city jails do not have the rates of death seen in county jails, as detainees often only spend a few hours in a city jail before being transferred to county facilities.

“This is bad policy that will directly impact the entirety of the criminal justice system, but it will personally impact those families who have lost loved ones in jails and are hoping for answers and accountability if necessary,” Bussey said in a written statement. “Transparency should be the default in government, not the exception.”

King and Hefner did not respond to multiple requests for comment.

What is an unfounded claim? Was it fully investigated?

Jeffrey Bert, police chief in the Houston suburb of Tomball, attended the House committee meeting in March to express his support for the bill.

Citing the carveouts the bill has for hiring agencies and some investigators, Bert said it “maintains critical transparency and accountability while supporting due process and protecting all officers’ privacy.”

After 24 years in the Los Angeles Police Department and five in Tomball, Bert testified that he had seen good officers’ reputations ruined by unfounded claims of misconduct.

“It’s inaccurate and can hurt the reputation of an organization,” he said. “It can devastate a police officer.”

Bert did not respond to multiple requests for comment.

The bar for substantiating complaints against officers is often set problematically high, according to opponents of the bill.

Eric Martinez, executive director of Mano Amiga, a criminal justice reform advocacy group in Hayes and Caldwell Counties, said in an email that in cities that have adopted Chapter 143, the g-file “creates a perverse incentive to avoid discipline, so departments can bury the truth instead of dealing with it.”

This discourages agencies from disciplining officers in order to keep such records sealed, he said.

“Instead of protecting the integrity of law enforcement, it creates a loophole for covering up wrongdoing,” Martinez said. “Expanding this secrecy statewide … would be a huge step backward for transparency, accountability, and public trust.”

Alejandro Del Carmen, a criminology professor at Tarleton State University who is considered a pioneer in research on racial profiling in policing, struck a more middle-ground position on the bills, saying they would likely protect some officers from false accusations of wrongdoing.

“However, my concern is that in a few cases, the accusation may be valid but not enough evidence could be identified to hold an officer responsible for a particular behavior,” he said in an email exchange. “In these cases, the bill would protect the identity or availability of documents related to officers that may be guilty of wrongdoing but where not enough evidence is available at the time of the investigation.”

Allowing law enforcement agencies to be the ultimate arbiters of not only which misconduct reports are valid but who has access to them is “dangerous and unnecessary,” according to Chris Wellborn, president of the National Association of Criminal Defense Lawyers.

“What is an unfounded claim, one that was fully investigated and determined to be unfounded? Or is it simply one where somebody was not disciplined?” he said in an interview.

Putting misconduct claims that were properly investigated and found to be unsubstantiated in the public record benefits law enforcement by strengthening trust with the community, he said.

“I would think they’d want that out there, because that would show more credibility,” Wellborn said.

Does transparency benefit citizens and law enforcement?

In June 2020, Ryan Hartman, then a sergeant with the San Marcos Police Department, ran a stop sign in Lockhart going 16 mph over the posted speed limit and crashed into a car driven by a woman named Pam Watts. The crash severely injured Watts and killed her passenger and partner Jennifer Miller.

Hartman was cited for running a stop sign and allowed to return to duty.

Body camera footage from Lockhart police officers revealed that they found a 24-ounce can of beer in Hartman’s cup holder. The video also shows Hartman saying, “I caused the death of somebody.”

Emails between police officials and city employees obtained by investigative reporters with San Antonio’s ABC affiliate showed that the Lockhart Police Department recommended a charge of criminally negligent homicide, but in November 2020 a grand jury determined there was not enough evidence or probable cause to indict Hartman.

“This was something that was discovered outside the confines of the personnel file, and that was part of the issue,” said Martinez, of Mano Amiga. “We were made aware that the department knew that this had occurred and had otherwise kept it confidential and (did) not disclose it to the public.”

Hartman was eventually fired for unrelated rules infractions in 2022. But his case serves as an example of how the bills’ department file disincentivizes accountability in law enforcement agencies, Martinez said.

Transparency can protect police and strengthen public trust, bill opponents say.

Last June, the family of a man who was killed by a Hays County jailer at a hospital in Kyle in December 2022 requested prosecutors dismiss charges against him after body camera footage showed the man assaulted him and attempted to flee before he was shot.

“It works both ways,” said Ananda Tomas, executive director of the San Antonio-based advocacy group ACT 4 SA. She also testified in opposition to the Texas House bill in March.

Transparency not only highlights police misconduct, she said in an interview, “but it can exonerate an officer or a jailer as well to have access to those records that show you know that there was no wrongdoing.”

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