Texas agency that licenses peace officers up for 'Sunset' review: What needs to change to improve accountability?

The Texas Commission on Law Enforcement, which is the state licensing agency for Texas police and jailers, is up for "Sunset" review during the next Texas legislative session in 2021. During a session when policing issues may dominate, this will be a track worth watching.* Here's the agency's "self evaluation" prepared as part of the process.

For the un-initiated, all state agencies in Texas every 12 years undergo a comprehensive "Sunset" review to analyze whether their core functions are still relevant and if the agency should continue to exist. If the agency is not proactively renewed by the Legislature, it is "sunsetted" out of existence. But seldom does the Sunset Commission make that recommendation. Instead, they identify ways the Legislature could fix the agency to better achieve its goals.

That's what I anticipate will happen with TCOLE. Texas has nearly one-sixth of the nation's law enforcement agencies (2,740) and more than 80,000 licensed officers. So there's a continued need to license officers and ensure that training meets minimum state requirements. But there's also plenty of room for improvement.

Lege, not agency staff, to blame for TCOLE's biggest shortcomings

Grits likes TCOLE Chief Kim Vickers and told the Sunset reviewers as much. From the time he assumed leadership of TCOLE (then TCLEOSE), he demonstrated he intended the agency to perform the oversight functions it had been assigned but which had languished under his predecessors. In short order, they began to find several jurisdictions where officers received training credits for classes they never took. Vickers took heat for pursuing these cases but didn't back down. I respected that about the man a great deal.

At the same time, viewed broadly, IMO it's inarguable that the agency is failing at the accountability functions which are the primary reasons for licensure. However, the reasons are statutory limits on their authority. They are an almost classic example of a "captured" regulatory agency. It's just that the capturing wasn't done at the agency level but at the Texas Legislature, which gives them few resources and only a narrow scope of authority for an impossibly big job.

Grits doesn't say this about many state agencies, but at root, TCOLE needs more staff and more power. As presently constructed, it was designed to provide the appearance of oversight (i.e., licensure) without meaningfully performing the function. That must change.

Staffing shortages prevent expertise development at agency, meaningful oversight

On staffing, the most urgent needs arise in curriculum development where outdated curriculum requirements are scattered across nearly every topic. When I last spoke to them about it, TCOLE employed one person in this role and struggled to find qualified staff at the salary they can pay. It's necessary, though. Right now, when you talk about curriculum changes, the waiting list until they get to a new topic is 3-4 years long. 

On training oversight, we've seen before that when TCOLE began exercising its oversight functions, they very quickly found examples of (sometimes allegedly criminal) misconduct. With 2,740 agencies, they need staff substantially beefed up to do more on the topic than an occasional sampling approach. They also could play a bigger role in weeding out bad training put on by private contractors, but do not presently have staff or authority to play that role. Training requirements across the board need to be reviewed for relevance, coherence, and comportment with modern best practices. 

Indeed, as the agency approving training curricula, one would expect TCOLE to possess issue-area experts in the areas they oversee. But they do not. So we get unfortunate examples like the agency being assigned to change how racial profiling data is gathered and, because they have no statistical experts on staff, screwing up and eliminating the racial elements from the data. (This is supposedly being fixed, I've been assured.) Having staff experts who could provide technical assistance would particularly benefit locals in evaluating training options. But there are many other examples where TCOLE should be participating in national conversations on policing best practices and using those experiences to inform training in Texas. Texas simply doesn't employ staff to perform those functions.

Boost TCOLE's authority to decertify bad cops

Another example of TCOLE's need for more authority: They need the power to completely decertify peace officers who engage in severe misconduct. Currently they only decertify if the officer is convicted of a felony. However, in about 2/3 of states, law-enforcement licensing agencies can decertify officers for misconduct without a conviction. 

This would be especially helpful for smaller agencies which already struggle to hire quality staff, or any staff at all. They often accept still-licensed officers with histories of misconduct because they feel they have no other options. Taking them out of the pool entirely would help solve the "gypsy cop" problem of officers floating from agency to agency being fired for misconduct. That said, giving them this power would also require more staff attorneys. They presently only have one and need at least one more to fulfill their current functions. It's super important not to lard the agency with mandates it has no resources to fulfill!

We also discussed something known in Texas police circles as the F-5 form, which started out as a reform  idea to notify chiefs and Sheriffs when an officer had a history of misconduct. But the police unions neutered it at the Legislature and the version that came out of the process provides no assistance to anyone and confuses more than it illuminates. I suggested they either turn it into a more comprehensive list of officer misconduct or stop doing it. It could be an important form of transparency - personally I think they should have much more information in them and should be public records - but as it stands, the F-5 is a waste of everyone's time.

Scale back scope, proliferation of police agencies statewide

Not only does TCOLE need more authority to decertify bad cops, but also bad agencies. There are more than 30 different types of entities - including "water control and improvement districts," railroads, the dental board, and the Southwestern Cattlemen's Association, which are authorized to have their own police agencies. That list should be scaled back, and/or the powers of many of them should be limited in scope. There's no need for cops from the dental board or the local school district to have authority to make traffic stops anytime, anywhere; they don't all need authority to assist other agencies in emergencies; not all need be armed (school marshals already are required to store their weapons most of the time).

Grits would also like to see the state make it a long-term goal to reduce the number of police agencies and merge smaller agencies to the extent possible. Perhaps the legislature could create some study task force to hammer out a plan to accomplish this, since nobody including me seems to have one. But it needs to be done. My theory: Management skill is a limited resource and there's simply not enough of it to spread around so that the smaller departments are likely to find any. Texas has about 1/11th of the nation's population but nearly 1/6th of its police forces. And our homicide rate is higher than California, Oregon, New York, New Jersey, etc., which have fewer agencies per capita. It's not like we're getting best-in-class outcomes from the vast, decentralized police ecosystem we've built out in Texas.

***

In summation, the Texas Commission on Law Enforcement should continue to exist but must change to be useful or relevant. It needs more staff, more expertise, and more power. It can and should play a more meaningful role in police accountability - by decertifying bad cops, closing or merging poorly performing departments, and bringing high-level expertise into Texas police officer training - but not without a substantial budget increase and an expansion of its statutory authority.

Is that possible in the current political environment? Police oversight is far more popular than it was a year ago, but the state budget outlook is oh-so-much gloomier. If the solutions at TCOLE involve doubling or even tripling its budget in a session when other agencies must take haircuts, will that be viable? Maybe. It's a small amount of money in the scheme of the Texas budget. But it will require a change in mindset among budget writers and the membership at large at the Texas Legislature.

See prior, related Grits posts:

• Sunset review provides chance to restrict who in Texas gets to have a police force
• San Antonio can't fire officers who use the N-word or feed homeless people feces: Accountability systems in Texas civil service cities broken
• TCOLE screwed up new racial profiling data required under the 2017 Sandra Bland Act

* Sunset staff interviewed Grits yesterday about TCOLE and I scribbled down a few notes before I chatted with them to organize my thoughts. This blog post is based on those; it may later become the basis for written testimony.