Imagining a "George Floyd Act" for Texas

Texas Gov. Greg Abbott has already suggested he'd be open to signing a "George Floyd Act" next legislative session, and legislative offices have begun jockeying over who should carry such a bill and what should be in it.

As a thought experiment, let's explore possible policy proposals such George-Floyd legislation might embrace. The Texas legislative session won't begin until January, so there's plenty of time to add to and refine this list. (As always, gentle readers, please suggest any omissions, tweaks, or criticisms of these ideas in the comments; now is the time for a robust discussion regarding how to confront these subjects.)

There will be a temptation to pass a narrow bill banning chokeholds, claiming victory, then everyone going on their merry way. Many departments are already looking to the #8CantWait proposal, which has been disavowed by leaders of the group that created it as inadequate to the moment. Too many departments are pretending that, by adopting those eight policy measures, they can say they've solved the problem. Advocates must be clear from the get go - both at the state and local level - that that's not good enough.

Many protesters have focused on scaling back the policing footprint, spurring a national debate over what it would look like to "defund the police." But local governments, not the state, decide how much money police departments receive, so Grits suspects state legislation will avoid the whole divestment/reinvestment debate. Other than Texas DPS, whose jurisdiction and governance issues differ significantly from local departments, the legislature has little to do with setting law-enforcement budgets.

So, what more substantive reforms might go into a state-level George Floyd Act in Texas?

Use of Force: New limits, greater transparency

Grits would like to see deadly force standards scaled back in Texas. Ours allows deadly force to be used in too many situations where it's not needed. In 2017, state Rep. Senfronia Thompson filed HB 2044 which included a first stab at that project. That bill would disallow deadly force unless officers faced an "imminent threat" of death or bodily injury to themselves or others. It also would have eliminated language that said deadly force could be used against anyone suspected of a violent felony, whether or not they posed an immediate threat. Finally, the bill would have required departments to implement policies of de-escalation and proportionate response. That legislation didn't pass, but its proposals should be revisited now.

Texas also needs more transparency and data surrounding use of force. As part of the Sandra Bland Act passed in 2017, Texas began to require reporting of use of force at Texas traffic stops. (We learned from that data that Houston residents are more likely to be assaulted by police at traffic stops than any other jurisdiction, using force on about one out of every 188 drivers stopped.) Texas also now has mandatory reporting for all police shooting episodes, whether or not the victim dies. But Texas does not gather comprehensive reporting on lesser use of force examples, and most local departments don't publish that data, if it's kept at all. That should now change. As Grits has said often on these questions, you can't manage what you do not measure. 

Duty to intervene

There are many "duties" of police set out in Texas statutes, including some that need to be scaled back, like the "duty" to arrest people for every violation under statute (an absurd assignment that no officer could possibly fulfill). But Texas law does not impose on officers a "duty to intervene" when another officer is violating law, departmental policy or harming a person unnecessarily in their presence. This is among the most striking images from George Floyd's murder: the other officers just casually standing there while a man died. We saw the same dynamic as protests filled the streets and cell-phone video captured numerous episodes of police brutality and excessive force. Typically, only a few officers engaged in the most abusive behavior, but their comrades-in-arms just stood there and watched.

Disciplinary processes/civil-service reform

Other possible reforms could focus on strengthening police disciplinary processes, especially in cities governed by the state civil service code (Local Government Code Ch. 143). Civil service rules make it exceedingly difficult for police chiefs to hold officers accountable, even when they sincerely want to. Just Liberty has already been asked by a handful of legislative offices what provisions of the civil-service code need revisiting, and came up with this short list:

• 180 day rule: Currently, the civil-service code forbids disciplining officers after 180 days have passed since the alleged misconduct; this should be repealed.
• Ending special treatment during investigations: Eliminate provisions letting officers see complaint/video/investigative files against them and giving them 48 hours before supervisors and investigators can question them about serious misconduct.
• Create a strong, clear, progressive disciplinary matrix. This helps keep disciplinary actions against police from later being overturned in arbitration. The more consistent and standardized discipline becomes, the less likely it will be overturned on appeal. 
• Transparency about police misconduct: eliminate LGC 143.089(g) making personnel files closed. Same records are already open at Sheriffs offices and non-civil-service cities, and it doesn't create problems for them.
• Transparency in negotiations: Require that negotiations between city management and the union over police contracts must be public meetings that anyone can attend.
• Forbid police union contracts from making disciplinary processes more lenient. Should only be able to enhance accountability in contracts, not diminish it.
• Add a Sunset provision requiring voters to re-authorize civil service every ten years. The Lege has passed many cop-friendly anti-accountability provisions since most departments adopted it in the '40s. Voters never approved of most of the anti-accountability measures mentioned here, they were all added after the fact.

There are almost certainly other tweaks to the disciplinary process needed; this is what we came up with as a starting point on relatively short notice.

Corroboration for police testimony in drug stings

There's another reform element Grits feels like should be in any eponymous George Floyd bill that relates not to his death but his time in Texas. As it turns out, George Floyd was one of at least 160 people whom the Harris County District Attorney has identified as being convicted of a drug offense based solely on the uncorroborated testimony of a corrupt Houston narcotics officer named Gerald Goines.

There appears to be a good chance that George Floyd was set up by a corrupt narcotics cop in that case and may well have been innocent of the charge.

The Legislature has tried and failed to address this issue before. Most folks have forgotten the Tulia drug stings in the late '90s, in which an undercover cop named Tom Coleman lied to secure drug convictions against about 15% of the black population in that small, West Texas town. Coleman was eventually convicted of perjury and Gov. Rick Perry pardoned nearly all of the defendants.*

The following legislative session in 2001, then-Rep.-now-state-Sen. Juan "Chuy" Hinojosa filed a bill to require corroboration for undercover police officers in order to secure a drug conviction. The bill was scaled back during the process to only apply to testimony from non-police informants. That's still a big deal, since cases based on their testimony are more common than police officers personally going undercover. But the failure to require corroboration for cops left a giant loophole that Gerald Goines (and likely others at HPD narcotics, if we're honest about it) abused with impunity.

Grits believes Texas should go back and pick up that spare from the 2001 session. The state has shown it can still make plenty of drug cases using corroborated evidence (it's not like they stopped using informants post-2001, after all), but the requirement adds in a needed check on officers like Goines who would abuse their position just to bulk up arrest stats.

This is a non-comprehensive, first-cut list of suggestions for police-reform proposals that the Texas Legislature could embrace. It's meant to be a starting point for discussion, not the final word on anything. So definitely let me know what you think of these suggestions in the comments, as well as anything I might have missed that legislators should consider.

MORE: The Austin Statesman also offered suggestions for what should be in the Sandra Bland Act. A couple of their ideas - the Sandra-Bland no-arrest-for-Class-Cs and closing the "dead suspect loophole" - are likely to be filed as their own stand-alone bills. And in truth, closing the "dead suspect loophole" is only part of what we need to revive the public's open-records rights on these topics. The access we've lost goes much deeper than that.

*As a coda to that two-decades-old story, the Tulia cases launched an early effort that today might be categorized as part of an "abolish" or "defund" the police campaign. Tom Coleman worked for one of (at the time) 51 multi-county "regional narcotics task forces" which employed more than 700 narcotics officers across Texas. Your correspondent, then at ACLU of Texas, was part of a six-year campaign resulting in the outright abolition and defunding of these task forces in 2006. This is now mostly forgotten history and the effort was never replicated in other states. But it's among Grits' proudest achievements in a quarter-century of activism on these topics. Very few other #cjreform victories in Texas have been as thorough, or as satisfying.