Transparency bill will please prosecutors, police accountability advocates ... unions, not so much

With SB 783, State Sen. Juan "Chuy" Hinojosa has filed a rare example of legislation which should make police accountability activists and Texas prosecutors equally happy. The catch: Police unions will react as though their hair is on fire.

Can't please everybody, I suppose.

Disparate transparency
Hinojosa's bill addresses a 30-year old loophole created by the then-Democratic-controlled Lege to make police disciplinary files secret records in the 70 or so cities which have adopted the state civil service code (Ch. 143 of the Local Government Code). In the other 2,500+ Texas law enforcement agencies, those records are governed by the Texas Public Information Act and virtually the entire file is a public record, with a handful of exceptions involving personal privacy and other statutory limits.

In civil service cities, the personnel file always remains closed and the public can only see summaries of the underlying misconduct in cases where the officer is fired or suspended from work. Under the public information act, the overwhelming majority of documents in that file are public records.

This leads to an odd situation where, for example, police misconduct at the Austin PD must be concealed from the public if the officer is given a warning, reassignment, or any punishment less than a suspension. By contrast, at the Travis County Sheriff's office down the street, if a deputy engaged in the exact same misconduct, their file and the results of the investigation would all be a public record.

Similarly, Dallas and El Paso are the two largest cities which have not adopted the civil service code, and the public in both of these cities gets greater transparency about misconduct at their police departments than do nearby towns where police operate under civil service. In Dallas, this creates a situation where the largest city in the county is fully transparent about police misconduct, generating far superior reporting about the agency by the local press, while in most of the smaller suburban jurisdictions that surround it, most information about police misconduct is kept secret.

Making prosecutors happy
It's easy to understand why police accountability activists want these files open. Why would prosecutors be happy about it? To answer that question, one must recall the passage of the Michael Morton Act by the Texas Legislature in 2013, which strengthened requirements that prosecutors disclose exculpatory, mitigating, and impeachment evidence beyond minimalist requirements in federal precedents under Brady v. Maryland.

Under the Michael Morton Act, prosecutors are responsible for providing the defense with impeachment evidence about their witnesses, including police officers. But prosecutors aren't allowed access to police personnel files any more than are open records requestors under the civil service law. So situations have arisen where prosecutors are held responsible for failing to turn over impeachment evidence which was in possession of the police department but concealed from them by statute. It's considered an act of prosecutorial misconduct to fail to turn over impeachment evidence under the Michael Morton Act, so the secret personnel files put prosecutors between a rock and a hard place.

Perhaps the poster child case for this phenomenon was the Carlos Flores case in San Antonio. Flores pled no contest to assaulting a police officer. But it turned out the officer had beaten Flores severely and then charged his victim with assault. SAPD knew about the incident but did not inform prosecutors that the charges against Flores were a lie. An innocent man was convicted, and later exonerated. (Kudos to the Bexar DA Conviction Integrity Unit for taking a second look at the case.) No prosecutor wants to be blamed by the courts or the media for not turning over information to which they by law don't have access.

Expect nuclear response from police unions 
While prosecutors and police-accountability advocates can commiserate over this feel-good bill, one may expect police unions to react as though the coastal-based senator had suggested chunking babies into the sea. As they're doing in their pension fights, police unions will invoke the officers killed in Dallas and other in-the-line-of-duty deaths and pretend that somehow their sacrifice merits keeping the public in the dark about bad cops. With prosecutors on the other side of the issue, though, that case will be more difficult to make.

To understand this reaction, it's helpful to know a little about the nature of Texas police unions. Texas is a right-to-work state and unions are weak here. To the extent that police unions wield more power than most, it's because their primary function - over and above collective bargaining, which most Texas cities don't have - is essentially to provide Misconduct Insurance to their officers, promising to deploy a phalanx of experienced, hyper-aggressive attorneys and advocates to defend bad cops when they screw up. That's the main thing union dues pay for: When an officer gets in trouble, they may count on a level of legal assistance most criminal defendants couldn't dream of having.

So keeping police from being held accountable for misconduct is a primary police union function, and that includes keeping sustained misconduct out of the public record in case the officer ever wants to change jobs and apply to another department.

In reality, the other 2,500+ Texas law enforcement agencies which for generations have operated under the Public Information Act face no significant problems as a result, so the arguments for keeping these records secret are weak and self serving. That doesn't mean they won't be loud and overheated. Tis the nature of these sorts of debates.