AUSTIN (KXAN) — Despite hitting a last-minute snag in the final full week of the legislative session, a years-long fight to close a controversial legal gap known as the “dead suspect loophole” is still moving toward the Texas governor’s desk. This development comes days after the one-year anniversary of the Uvalde mass shooting that killed 19 children and two teachers, which put a spotlight on the importance of public records, transparency and the truth.
“We’ve agreed to the changes that would make this bill operational and the House conferees have signed off on that,” Rep. Joe Moody, D-El Paso, who authored the bill and has been trying to close the loophole for years, said earlier Friday. “So, we’re simply waiting to see what happens.”
The holdup had been Republican Lt. Gov. Dan Patrick, according to several sources with inside knowledge. KXAN reached out Friday to his office to ask about the status of the bill but did not immediately hear back.
The “dead suspect loophole” refers to an exemption in the Texas Public Information Act that gives police discretion to withhold records from the public in cases where a suspect doesn’t go through the court process. It has been used to block records from being released in cases where a suspect dies in police custody.
House Bill 30 passed both chambers but changes made by the Senate were rejected this week by the House. That stalemate triggered the need for a conference committee to hammer out an agreement. The House appointed its five members earlier in the week, but three days passed before Patrick appointed the Senate’s five members. Legislative sources tell KXAN Patrick, who presides over the Senate, had been refusing to appoint that chamber’s conferees despite both sides reportedly reaching an agreement on a final version to send to the governor to be signed into law. However, just hours after KXAN investigators first reported the holdup, the Senate conferees were posted, and the legislative process was once again moving forward.
The Senate, in its changes, exempted police personnel records from being made public. Senators also changed the language — substituting the word “or” for “and” — which would require, “each person who is described by or depicted” in the records request, other than the person who is dead or incapacitated, “consent to the release.”
KXAN has also reached out for comment to the office of the bill’s sponsor in the Senate — Phil King, R-Weatherford — but has yet to hear back.
The session ends Monday.
Problems caused by the ‘dead suspect loophole’
The public records loophole rose to prominence – again – last year when Uvalde officials used it to block the release of records and video that would have shed light on law enforcement’s response to the Robb Elementary School shooting. Since the gunman died, there was no obligation to release records related to the incident which would have shed light on the widely-criticized response.
Following the mass shooting, House Speaker Dade Phelan tweeted it was time to “end the dead suspect loophole for good in 2023” after saying it would be “unconscionable” for it to be used to block families from getting answers.
“The issue with it became extremely pronounced during that investigation,” Moody previously said. “Because what we needed were facts. We needed the documentation. We needed the videos. We needed to know what happened.”
The conflicting information surrounding what happened in Uvalde helped give the bill momentum this legislative session. It is currently one of the only measures related to Uvalde still able to move forward in the final days of the legislative session — others stalled or missed key deadlines. Moody said the families deserve to know what happened — “all of it, good, bad, and ugly.”
“Uvalde underscores how crucial this is: The [hallway] video you’ve all seen of that incident,” Moody said during an April hearing, “is only out there because (House Investigative Committee on the Robb Elementary School Shooting) Chairman (Dustin) Burrows took the courageous step of announcing that he intended to release the video, in violation of the law, to get the truth out. If he hadn’t, it would still be secret today — even for the families whose children never came home that day.”
For the family of Graham Dyer, this could be yet another setback. In 2013, the 18-year-old died in police custody. His parents fought to get records and video of the incident but were denied at every turn because their son was under arrest when he died and, therefore, hadn’t gone through the court process.
The family later learned through a Freedom of Information Act request with the FBI, which wasn’t subject to Texas law, that their son suffered a severe head injury after officers shocked him repeatedly with a Taser.
Dyer’s mother, Kathy, has advocated for years to close the loophole and testified twice this legislative session. Just this week, she told KXAN she was “surprised, very pleased, and extremely grateful” to lawmakers for getting the bill as close as it ever has been to ending.