Monday, April 12, 2021

A dirty, uncomfortable feeling: TCOLE Sunset bill lame, inadequate, and kicks can down the road on the biggest police accountability issues

After staff at the Texas Sunset Commission issued a scathing assessment of the Texas Commission on Law Enforcement, the legislation enacting their vision couldn't be more disappointing. The bill passed out of committee as filed this week with no changes.

It would create a blue-ribbon commission to evaluate all the biggest questions, even though Sunset staff already identified the problems. See Grits' write-up of Sunset staff's concerns for more detail, but big picture, Sunset staff said "Texas' Approach to Regulating Law Enforcement is Ineffective" and "the state’s regulation of law enforcement is, by and large, toothless." They cited a "fragmented, outdated system with poor accountability, lack of statewide standards, and inadequate training."

Further, they declared "The state’s regulatory model, bifurcated between state and local government, creates significant gaps that undermine the purpose of statewide licensure, and does not best ensure public safety or law enforcement accountability and transparency."

Last but not least, the Sunset review found that "TCOLE’s minimum training standards are outdated and ultimately do not meet the evolving needs of law enforcement personnel in Texas."

None of this is being addressed, even though solutions are apparent for most of the problems.

You see, TCOLE is not like a regular licensing agency. If they were licensing plumbers or beauticians, they would identify oversight required to keep the public safe, calculate the costs, then charge licensees a fee to cover it. TCOLE is the only licensing agency I'm aware of to which licensees pay no fees. Their money largely comes from a fund generated by court costs which have been declining in recent years and is scheduled to run out.

So there's a strong argument to charge TCOLE licensees a fee, anyway. But that's even more the case when you realize there's so much they need they can't pay for: Curriculum development specialists, issue-area-experts, an expanded decertification program (appeals require lawyers), more inspectors to ensure training requirements are met ... even tasks like gathering data from the Sandra Bland Act get messed up because the agency has no staff or expertise to assign to it.

TCOLE needs expanded authority and expanded staff. Creating a licensing fee is how to pay for the extra staff. It's how every other licensed industry pays for oversight. If the Legislature won't enact licensing fees in this Sunset bill, at a minimum they should add a requirement to the bill that the "blue ribbon commission" study creating them.

As for expanded authority, TCOLE is one of only a handful of states whose authority to decertify officers who engage in misconduct is so incredibly limited. In Texas, officers must be convicted of a felony, a serious misdemeanor, or be dishonorably discharged as an officer TWICE before TCOLE can decertify them. According to the Sunset review, more than 2,800 officers over five years were dishonorably discharged in Texas, but only nine lost their licenses.

The easiest, most high-impact reform the Legislature could make in the TCOLE Sunset bill would be decertify officers licenses when they're dishonorably discharged. The legislative fix is easy: delete the final clause of Sec. 1701.4521 of the Occupations Code. Here's how to do it:
Sec. 1701.4521. LICENSE SUSPENSION FOR OFFICER DISHONORABLY DISCHARGED. (a) The commission shall suspend the license of an officer licensed under this chapter on notification that the officer has been dishonorably discharged if the officer has previously been dishonorably discharged from another law enforcement agency.
There's already an appeals process in place. TCOLE might need more resources to manage a greater number of appeals, but that's not an insurmountable problem. And why even bother to license officers if misconduct so extreme they're "dishonorably discharged" isn't enough to take away their badge?

Decertification authority needs to be bolstered in other ways, some of which were captured in Rep. Vicki Goodwin's HB 2844. It doesn't make sense to wait until cops are convicted of felonies before they can lose their licenses, but that's the way the law reads now.

There are other, obvious changes needed. One small thing, but dear to my heart: Texas was once the "epicenter" of forensic hypnosis in America. But now that no police agency in the state admits to using it and it's no longer possible to get training in the discipline, it's time to "sunset" the forensic hypnosis certification program at TCOLE. Legislation is moving in both chambers to ban the practice from Texas courts and nobody showed up to oppose either bill. What's the point of keeping this dead discipline on the books?

Another unaddressed topic: The board membership at TCOLE needs to be expanded. IMO, three heads of local civilian-oversight agencies should be added to round out all the law-enforcement management and union interests represented.

Finally, Grits would like to see the Sandra Bland Data collection at TCOLE expanded to include police use of force, as New Jersey recently mandated. (If Grits had his way, they'd report every time they pointed their weapon.) Not only should this data be gathered, TCOLE should be staffed to clean, manage, analyze, and report on it.

Nothing like that is in the Sunset bill. They kick the can down the road and everyone is asked to wait patiently for a blue-ribbon panel's recommendations so they can then ignore them like they are suggested improvements now.

Leadership is saying they don't want to take amendments and prefer to keep the bill "clean," but to be honest, it all feels pretty dirty: Another regulator in thrall to the industry it regulates, only this time the industry capturing its regulators isn't electric-power producers, it's law enforcement. And it's not so much the regulators who've been captured (TCOLE boss Kim Vickers wants more resources and authority), it's the lawmakers who write the rules and draft their budgets who're hamstringing greater accountability.

Finally, the blue-ribbon panel itself as written is dominated by law enforcement interests and contains scarce few slots that could even conceivably be filled by anyone with a civil-rights or police-accountability background: It's theoretically possible but unlikely, and if it happens, it'll be one or two token appointments. This is a panel designed to defend the status quo, not to challenge it.

Grits was hopeful the TCOLE Sunset process would provide opportunities for accountability-focused police reform, but that doesn't seem to be the case so far.


Anonymous said...

I see TCOLE fees here:

Gritsforbreakfast said...

Those are for one's original commission, not an annual licensing such as your plumber or hairdresser might pay.