Law enforcement transparency emerges as a Texas Legislature theme

posted on 1.27.2015

The 84^th Texas Legislature is trudging forward from its start a little over two weeks ago.  The initial drama of a House speaker vote and adoption of the House rules was replaced last week by the inauguration of the first new Texas governor and lieutenant governor in over a decade.  It was quickly followed by a spirited, but civil vote on the Senate’s rules.  

Most of the attention focused on the Republican-led effort to do away with the so-called “two-thirds rule”, a long-standing tradition which required senate members to get the approval of two-thirds of the body in order to bring a measure to the floor for debate and potential passage.  The Senate voted 20-10 with one present/not voting to lower the threshold to three-fifths.  

Reported to a much lesser extent were the committee changes adopted in the Senate rules.   The Senate will operate with four fewer legislative committees, going from 18 to 14.   The Senate Committee on Open Government, which had been in existence for two sessions, is no more.   Most Open Government bills will now head to the Senate’s Committee on State Affairs.  Lt. Gov. Dan Patrick ended last week with the release of Senate Committee assignments.   The State Affairs committee will be chaired by Sen. Joan Huffman, R-Houston, and its makeup is much more conservative than it has been in past sessions.

House Speaker Joe Straus will likely release the House committee assignments as House lawmakers leave Austin to return to their districts in the first week of February.  

At this point in any legislative session, Open Government advocates are keen to spot legislative themes for that session.   In the 2013 Legislature, the big theme was financial transparency.   While many bills were filed on the topic, few actually passed, but the measures that did to make it easier for Texas’ citizenry to keep up with the spending of taxpayer dollars.

This year law enforcement transparency is emerging as a theme. 

While Texas remains staunchly pro-law enforcement, there has been movement for more law enforcement accountability and restraint.  In the 2013 Legislature, Tea Party affiliated Republican lawmakers passed a bill regulating the use of drone aerial photography in Texas.   The measure was not specifically targeting the paparazzi, rather the use of such technology by law enforcement for the purpose of surveillance. 

Texas lawmakers have filed three bills this session calling for the use of police officer “body cameras”.  Supporters compare the bills to previous legislative efforts that resulted in Texas police cars being equipped with dash cameras.  Several Texas metropolitan police departments have been using the cameras on an experimental basis.  These three measures seek to equip patrol officers with the cameras.   They differ in retention periods for the recordings captured by the cameras. 

HB 474 by Rep. Ron Reynolds, D-Missouri City expressly makes the camera recordings public information subject to release.  Companion bills HB 455 by Rep. Eric Johnson, D-Dallas and SB 158 by Sen. Royce West, D-Dallas do not do so.  Any such release authorized by any of the bills would likely be subject to the so-called “law enforcement exception” of the Texas Public Information Act, Section 552.108, which allows police departments to withhold information if it is part of an ongoing investigation.  It’s the most widely used exception in the TPIA. 

HB 455/SB 158 require police officers to activate the cameras when responding to calls, but also gives officers the option not to activate the cameras in certain instances.  For example, the bill says “an officer equipped with a body worn camera shall activate the camera when responding to calls for assistance and when performing other law enforcement activities, including traffic stops, pursuits, arrests, searches, or interrogations, unless activation of the camera would be unsafe, unrealistic, or impracticable."  However, an officer “may choose not to activate a camera or may choose to discontinue a recording currently in progress for any non-confrontational encounter with a person, including an interview of a witness or victim."

Texas Gov. Greg Abbott told the Houston Chronicle earlier this month that equipping officers with body cameras was a "step in the right direction."  Abbott told Houston reporters that the technology could reduce the potential for civil unrest by documenting what actually happened, especially in instances of a fatal officer involved shooting.   "We've seen the aftermath of Ferguson," Abbott told the Chronicle. "I don't want anything like that to happen in the state of Texas."

West says his bill is a starting point for the discussion on the use of the technology but that several concerns which must be worked on such as privacy issues as well as recording retention periods.  

Two other measures would require recordings of custodial interrogations in cases involving serious crimes such as murder.   There is no current requirement to do so in Texas.   HB 541 by Rep. Terry Canales, D-Edinburg, and SB 181 by Sen. Rodney Ellis, D-Houston, would require law enforcement to record suspects when they are interrogated during custody.  Like the bills mentioned above, such recordings would be subject to the TPIA “law enforcement exception.” 

As we noted in last week’s TAB Bulletin, state Sen. John Whitmire, D-Houston, filed SB 308 that would make the records of police departments at private colleges and universities subject to the Texas Public Information Act.   The move stemmed from the effort by Houston’s KPRC-TV to obtain the full dash camera video depicting the 2013 beating of a bicycle theft suspect by Rice University police officers.  When the station tried to obtain a copy of the video under the TPIA, university attorneys told KPRC that its police department is part of an "independent, private institution of higher education" and was "not required to respond to your requests for information under the Act."

The law enforcement transparency theme extends to the judicial process.  HB 48 by Rep. Ruth Jones McClendon, D-San Antonio, and SB 81 by Sen. Rodney Ellis, D-Houston, would create a state exoneration review commission to review potential wrongful convictions.  McClendon’s bill passed the House in the 2013 session, but died in Senate committee.

Canales, the Edinburg representative, also has filed HJR 62 which would require a two-year trial by the Texas Supreme Court and Texas Court of Criminal Appeals to make a video/audio recording of each oral argument, proceeding and open meeting of each court.  The recordings would be posted on each court’s website.  HJR 62 is a constitutional amendment that would require approval by Texas voters if passed by the Texas Legislature.

Stations can keep up with these legislative proposals by using the state’s free legislative site, the Texas Legislature Online.   One can track the progress of legislation on the site and set up email alerts when there’s been a bill development. 

Questions?  Contact TAB's Michael Schneider or call (512) 322-9944.

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