Even without governor signing, 'dead suspect loophole' will finally close

AUSTIN (KXAN) -- On Sept. 1, Texas' controversial "dead suspect loophole" will finally close, ending a years-long effort to increase transparency when it comes to police records. However, the measure to bring about that change will go into effect without Republican Gov. Greg Abbott's signature.

House Bill 30 revises an exemption to the Texas Public Information Act, which gave law enforcement discretion to withhold records in closed criminal cases where a suspect does not go through the court process, including when that person dies. Under the new law, records will no longer be allowed to be kept secret from the public just because a suspect is dead. Law enforcement personnel records related to an incident, however, will remain sealed.

Winding path to the governor

Following Sunday's midnight deadline for Abbott to sign or veto bills from the regular legislative session -- which wrapped three weeks earlier -- HB 30 became one of 131 other bills to be listed as "filed without the Governor's signature." It essentially means a bill will become law, even though the governor took no action on it.

This can occur as a symbolic act or a way for the governor to distance himself from legislation. In past regular sessions during Abbott's terms, he has allowed this to happen with between 105 and 163 bills. His office has not responded to KXAN's multiple requests to comment on HB 30 in recent weeks.

HB 30 -- which has faced strong opposition from police unions over the years -- had a winding path to the governor's desk with several procedural challenges in the final days of the most recent regular session. It passed both chambers but Senate changes triggered a stalemate and the need for a conference committee to hammer out an agreement.

As the clock ticked away and tension over other legislative battles -- mostly an ongoing property tax plan struggle -- mounted, sources tell KXAN that Republican Lt. Gov. Dan Patrick, who presides over the Senate, had been refusing to appoint that chamber’s conferees despite both sides reportedly reaching an agreement. Following KXAN investigators reporting the holdup, Senate conferees were posted, and the legislative process was once again moving forward. Both chambers soon approved a final version.

But the bill later went "missing" at the end of the session. After KXAN first reported that discovery, the two chambers pointed fingers at the other. Open records advocates wondered if HB 30 -- the only bill lawmakers passed that had mysteriously not made it to Abbott -- had become political fallout, physically disappearing before Patrick signed off.

Without that signature, it could not progress to the governor or become law. Nine days after the session -- following KXAN's continued coverage of the HB 30 mystery -- Patrick announced during a press conference that he had inadvertently set the bill aside on his podium during a squabble over a deal between the chambers and that it was "always intended to be signed." Soon after, the bill -- with Patrick's signature -- was once again headed to the governor.

KXAN’s multiple requests for comment from Patrick – beyond that press conference – have gone unanswered. KXAN has also requested copies of communication from Patrick’s office to further shed light on the timeline and verify his explanation. So far, there has been no response regarding those records, and the legal deadline to do so initially is Monday.

Now, the unresolved property tax clash has forced lawmakers into an immediate special session. And in recent days, Abbott has used his veto power surrounding regular session bills to pressure Senators into the House plan he supports.

“All of these bills that have yet to be signed face the possibility — if not the probability — that they’re going to be vetoed,” Abbott said during a bill-signing ceremony at the Capitol last week.

So far, the upper chamber has refused to budge, as Patrick has called out the governor's actions on social media.

“In a ploy to apparently get his way, Governor Abbott suggests he is threatening to destroy the work of the entire 88th Legislative Session — hundreds of thousands of hours by lawmakers doing the work the people sent us to do,” Patrick said on Twitter.

From the sidelines, HB 30 supporters worried -- because of its Senate sponsors' roles in the property tax standoff -- the measure to close the dead suspect loophole could suffer another political blow. But by Sunday's close, those concerns lifted when the governor left the bill alone -- perhaps the final hurdle it would face before becoming law.

For six years, KXAN has investigated the legislative conflict surrounding the "dead suspect loophole" and its widespread use by police to block record requests in cases when someone dies in their custody.

A family's fight for truth

That's what happened in the case of 18-year-old Graham Dyer. A decade ago, Dyer suffered head trauma and died following his arrest in Mesquite. Police denied his parents, Robert and Kathy, records and video related to their son's death. They only later learned what happened through a backdoor legal battle.

Since then, they've been fighting to close the loophole, testifying in multiple legislative sessions. For both of them, this is a long-time coming. Robert described the feeling to KXAN as "elation."

"Especially when there's a death in custody: if there's any time you would fling open the doors of accountability [to find out] how did this happen? What can we do to prevent it?" Robert said. "[To stop] the anguish that a lot of parents can go through when something happens and then they come up against a big brick wall."

Sitting on a couch at their home near Paris, Texas, beneath photos of Graham, who died 10 years ago in August, the Dyers said they hope this new law will help bring answers, accountability and transparency to other families.

"That's the most, most, most important aspect of it, and why we're willing to go through what we're going through, is to help other families in the future that encounter something like this or similar to it," Robert said. "When they slam that door of information shut, it just automatically makes you think, 'Ah. What are they trying to hide? What are they trying to hide?' It just destroys your faith in humanity."

"If something has gone terribly wrong when the police should be there to help, we want to know what went wrong, and not just hide that and cover it up, because you want to know what went wrong and fix that problem," Kathy said. "Maybe different training? Or, just a different approach to the interaction? I don't know. But it starts with knowing the facts and the truth."

Uvalde's impact

Last year, legislative efforts gained momentum after the mass shooting at a Uvalde elementary school -- when the shooter also died. Republican House Speaker Dade Phelan expressed early support to close the loophole "for good" in order to give the families answers amid conflicting accounts and a widely criticized lack of transparency over the law enforcement response.

"If it's important you don't quit," Rep. Joe Moody, D-El Paso -- who introduced HB 30 and has fought to overturn the loophole in four legislative sessions -- told Phelan, before his bill was sent to the governor. "Thank you for not quitting when it comes to criminal justice reform, for bringing transparency to our system, and for bringing justice to families."

The only transparency victims' families have received, so far regarding law enforcement inaction, has been because others have bypassed the law to make the information known, Moody said.

“Uvalde underscores how crucial this is: The video you’ve all seen of that incident,” Moody said, referring to the hallway video at Robb Elementary showing law enforcement inaction, “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.”

'KXAN made a difference'

For the Dyers, the new law means they won't have to keep making the five-hour trip to Austin every legislative session -- something they felt was "very important to do" -- even though it required they constantly relive the worst day of their lives, over and over.

"It really dismays and surprises me that we’ve had to do this, that KXAN has had to do all the work that you guys have done to cover this 'Denied' access, because it just seems like, you know, it would be something that would be evident -- that it’s the right thing to do without needing to have a law that says, 'do this,'" Kathy said. "But, I guess, you know, if people would always do the right thing the world would be a different place."

Their story helped inspire Moody's continued push to close the loophole over the years and press for greater transparency.

“The bottom line is when a citizen interacts with the government and ends up dead we need to know why,” Moody told lawmakers at a hearing this legislative session. “There’s literally no situation where the public has a greater interest in knowing.”

"From the past experience, we were not really expecting to get this far with it, so we are excited," Kathy said. "It wears on us going down to testify, it really does. It’s a hard thing to keep revisiting."

"I think what KXAN has done covering it has made a difference, I think what the Freedom of Information Foundation (of Texas) does, daily, is making a difference," she added. "And, hopefully, what we've done has made a difference as well."