With chances for TCOLE Sunset legislation withering, bill heard to expand agency's authority to kick bad cops out of the profession

Your correspondent is beginning to despair that the 87th Texas Legislature may come and go without meaningful reform a the Texas Commission on Law Enforcement, the state's police-and-jailer-licensing agency.

The TCOLE Sunset bill - which drew attention because of an especially harsh critique by Sunset staff calling it a broken system that's failing to achieve its mission - is now languishing with others in House Calendars and appears likely to be pushed off for two years. Instead the Calendars Committee sent forward HB 1600, which has already passed the House and will be heard this afternoon in the Senate Administration Committee. That bill pushes off the Sunset process for TCOLE, the Commission on Jail Standards, and numerous other agencies.

Legislation in the Senate to expand TCOLE's powers has yet to get a hearing, but this afternoon, better late than never, the House Homeland Security and Public Safety Committee will hear HB 3654 by Rodriguez which would beef up the agency's authority to de-certify peace-officer licenses for misconduct.

Regular readers know that, currently, TCOLE can only de-certify an officer’s license if he or she a) is convicted of a felony or certain, specified misdemeanors, or b) has been dishonorably discharged by not one but two different agencies. HB 3654 broadens the circumstances under which TCOLE can suspend licenses, directing the agency to develop rules governing when officers’ licenses may be revoked when the officer’s continued licensing would constitute a “threat to the public welfare.”

Under the bill, the agency would develop rules articulating when officers’ licenses may be revoked on the following grounds:

1) lack of competence

2) illegal drug use or addiction

3) lack of truthfulness in court proceedings, offense reports (unless recanted within 10 days), or employment applications,

4) making a false entry into court records,

5) evidence tampering

6) cheating on promotions exams

7) insubordination

8) discriminatory conduct

9) pattern of excessive force

10) pattern of abuse of official capacity

11) pattern of sexual harassment/misconduct

12) pattern of inappropriate relationships with persons in custody

13) pattern of misuse of information obtained as a result of employment as a peace officer

That'd be a massive and much-needed expansion of TCOLE's authority and would require a significant expansion of staff to fulfill those duties. It's also a list laden with negotiation-fodder; the bill could be scaled back considerably and still be quite a significant improvement.

The bill attempts to mitigate that to some extent by increasing the fee peace officers and jailers pay when their licenses are commissioned. But regular readers know these are among the only licensees in the state who do not pay regular licensing fees to cover the administrative bureaucracy of the agency that regulates them, the way, doctors, lawyers, hairdressers, or plumbers do. Make me Philosopher King and I'd make police officers and jailers pay annual or periodic fees to cover the costs of their licensing regulation. That's how it works for every other class of licensed workers and doing so would eliminate the "fiscal note."

This bill is starting pretty late in the process to make it all the way through in 2021, but it's an opening salvo in a discussion about how TCOLE's authority needs to be expanded. And some of these ideas could see their way into amendments tacked onto other legislation. KXAN-TV has lately been covering related topics, see here and here.

See prior, related Grits posts:

• How the #txlege can pay for needed staff, reforms at Texas' peace-officer licensing agency
• Texas agency that licenses peace officers up for 'Sunset' review: What needs to change to improve accountability?
• Sunset recommendation for a 'blue-ribbon panel' on Texas police licensing agency: Grits wonders what's left to study?
• Sheriff's deputy resigned amidst child molestation charges, murdered three people this weekend, but still technically eligible to work in Texas law enforcement

Sheriff's deputy resigned amidst child molestation charges, murdered three people this weekend, but still technically eligible to work in Texas law enforcement

In many other states, former Travis County Sheriff's Deputy Stephen Broderick would have lost his peace officer's license last year. He was allowed to resign in lieu of being fired amidst child molestation allegations, but like so many others before him, he remained eligible under Texas law to be hired at one of Texas' 2,500+ other law enforcement agencies.

He probably would have, too, if he hadn't allegedly murdered three people in Austin this weekend then gone on the lam. (UPDATE: He has since been arrested.)

His story shows why the Sunset Advisory Commission's report on the Texas Commission on Law Enforcement declared the agency's licensing process "broken." Sunset described a "fragmented, outdated system with poor accountability, lack of statewide standards, and inadequate training." The agency simply has no statutory authority to kick bad cops out of the profession.

Over a five year period, Sunset staff reported, more than 2,800 officers were dishonorably discharged from their agencies; TCOLE decertified only nine of them. More than a quarter of these officers get re-hired.

The reason: current law requires they be dishonorably discharged TWICE before losing their license. There's no good reason why once isn't enough. There's already an appeals process in place if extenuating circumstances exist.

Similarly, TCOLE may only decertify officers for alleged crimes if they're convicted of a felony or a misdemeanor that relates to their job (a nebulous, ill-defined distinction). So sustained allegations of child abuse that don't result in prosecution aren't enough to decertify someone in Texas, even if they're fired or resign over it. Broderick's case makes that clear. Even now that he's murdered three people. TCOLE doesn't have authority to remove his license unless he's convicted.

The TCOLE Sunset legislation so far addresses none of these issues, Grits reported recently. But HB 8 (Pacheco), which is scheduled for a House floor vote on Wednesday, represents the police union's "solution" to the problem.

This bill 1) requires disclosure of police personnel files of fired officers to any new agency that hires them, and 2) makes those records closed to the public.

The assumption appears to be that agencies won't hire officers if they know about misconduct in their past, but both history and data tell us that's not universally true. We've seen plenty of anecdotal examples of bad cops getting hired somewhere else. And as mentioned, Sunset staff reported that more than one in four dishonorably discharged officers get rehired every year. 

Moreover, the closed records provisions in HB 8 are over-broad. Personnel files presently are only confidential at the 73-or-so agencies covered under Ch. 143 of the Local Government Code. At all other 2,500+ agencies, including every county sheriff in the state - personnel files are subject to the Texas Public Information Act. HB 8 should be amended to ensure only records from Ch. 143 agencies are closed; this ostensible reform bill shouldn't become a vehicle to diminish transparency around police misconduct.

HB 8 is a baby step, at best, and may be a step backward if it diminishes transparency around police misconduct. Texas needs to do much more to make police licensing in this state anything more than a fig leaf for police misconduct and ultimately, a bad joke.

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.

For journalists: How to read a Texas racial profiling report, or, a case study demonstrating discrimination through police search patterns in Amarillo

Grits has started to see local reports on law enforcement racial profiling data from Texas traffic stops, but it's evident most local reporters don't understand what they're looking at. So they ask the department what it means, the chief soft pedals it, reporter files the story, bada bing, bada boom. That's how a local Amarillo TV station covered the report. Reporters seem to have gotten into a habit of doing the same simplistic story every year, even as the data has improved and much more can be gleaned. 

So Grits decided to perform a brief case study on what reporters can learn from a single department's racial profiling report. Grits has already examined the data at the macro level; now let's look at the micro, using Amarillo PD's report as an example. 

Black folks are slightly overrepresented among drivers stopped by police compared to the Amarillo population. A bit over 6% of Amarilloans are black while 11.1% of drivers stopped in 2020 were black. But because Amarillo PD patrols highways that cut through town and people who don't live in the jurisdiction drive on their streets, it's impossible to say with statistical certainty if the number of stops is disproportionate. To be clear, I believe it is, but I've been round this block for 20 years and there's no denominator to be had which doesn't pose some significant statistical problem.

This is what the Amarillo chief meant when he said it's impossible to tell if racial profiling occurred without a "better way of establishing the demographics of the driving public." He's right. Sort of.

But he's not revealing the full picture, and the reporter didn't know enough to demand he do so. If you're trying to identify racial disparities, look at search data, not overall stop rates. That's because for searches and arrests we have an incontestable baseline or denominator: the overall pool of people stopped.

In Amarillo, we do see disparity on this metric. Black folks represented 11.1% of people stopped but 18.3% of people searched. Black folks were also subjected to "consent" searches more frequently than their share of stops, making up 18.6% of all such searches. So Amarillo cops are both seeking and performing searches on black drivers more often than white ones.

The chief's concern about demographics of drivers vanishes once you drill down to this level of detail.

The number of people searched at traffic stops in Amarillo dropped by nearly half in 2020 compared to 2019. Interestingly, searches dropped more than stops, which declined but not nearly that much. Is this because of officers social distancing at stops, a change in policy, or some other reason? I can see dredging up a story on that topic on a slow news day. ;)

The majority of times Amarillo cops searched vehicles at traffic stops, they found nothing (56% of the time). That's pretty typical statewide.

Some data is easier to read on the TCOLE spreadsheet than in tables in a pdf file, particularly regarding contraband results from searches, where there are columns on the spreadsheet breaking out when contraband was found but no arrest was made that aren't in Amarillo PD's prose report.

Notably, though black people were more likely to be searched, Amarillo cops were more likely to find contraband when searching white drivers. Contraband was discovered 43% of the time white drivers were searched but just 38% of the time they went through black people's cars.

This is a key racial profiling indicator. If cops are searching black folks half again as often as their proportion among drivers but disproportionately finding contraband more often on white folks, that signals a discriminatory pattern.

This is one of the key, new calculations made possible by the 2017 Sandra Bland Act, but Texas journalists haven't figured out how to use the new resources available to them.

Searches of black people in Amarillo found contraband 35 times, which would not be too far out of line compared to the proportion of times they were searched (even though it's FAR greater than their proportion of Amarillo's population). Even so, 31 of the 35 times contraband supposedly was found in a black person's car, it was so minor they weren't arrested and were sent on their way. Couple that with the majority of arrests that found nothing, and that's a LOT of drivers subjected to pointless fishing expeditions.

By comparison, contraband was found on white folks in 105 searches, and the driver was arrested in 10 of those episodes.

From a journalistic perspective, I'd consider this a big story. Sure, the racial disparities in arrest rates aren't big. But if 90%-ish times when contraband is found, the driver is let go, what's the point of searching to begin with? Either the definition of "contraband" being employed is so broad as to include things that aren't illegal, or Amarillo cops are being awfully lenient when they find evidence of crimes. IRL, Grits suspects it's the former; this data pattern is a bit of an outlier but most agencies release the majority of drivers on whom contraband is found.

Statewide, black folks were slightly more likely to be arrested than white folks when contraband was found (38% compared to 33%), but the percentage for Hispanic folks was even higher (40%). Big gaps in those categories could mean one group is receiving lenient treatment and might be an avenue for local journalists to pursue.

Another important story from these reports: Amarillo PD arrested 115 drivers for a Class C misdemeanor traffic violations in 2020. With 215 total arrests at traffic stops, more than half of arrests at traffic stops were completely avoidable and likely represent pretext stops where the officer is fishing for some other crime. Those would cease if the Texas George Floyd Act became law. Statewide, Class C arrests were only 21% of the total, so this is happening more in Amarillo than elsewhere. What reporter wouldn't want a local news story linked to pending state legislation heard in the next few weeks? Well, it's available to you, if you know what you're looking at.

Notably, black folks made up just 11 of 115 people arrested for traffic violations at Amarillo traffic stops in 2020, so the Class C arrest ban in the Texas George Floyd Act isn't particularly a racial issue in Amarillo. Or black folks in Amarillo simply "consent" to searches before facing arrest, as noted above. Regardless, I'm pretty sure white Amarilloans don't appreciate being arrested for petty BS any more than black folks do. 

The maximum penalty for Class C misdemeanors is only a fine, not jail time. By arresting someone for a Class C and taking them to jail, police are inflicting a punishment more severe than a judge or jury could do.

Amarillo PD reported using force resulting in serious bodily injury at only two 2020 traffic stops. If local reporters don't know those cases are, maybe someone should look them up? Could be a story there.

There are many reasons for justice-beat reporters to examine Texas racial profiling data now that it's been enhanced via Rep. Garnet Coleman's 2017 Sandra Bland Act. In some instances, yes, reporters may find notable racial disparities: In Amarillo, for example, it appears black drivers are disproportionately searched compared to how often they're pulled over, are asked for consent to search more often than other drivers, and have contraband discovered less frequently than do their white counterparts.

But there are also news stories buried in these data beyond racial discrimination: Most immediately in relation to the Texas George Floyd Act, Class C misdemeanor arrests (both traffic and municipal ordinances), and use of force. It also might be informative to compare data from nearby jurisdictions. Often, as demonstrated in this example, differences in search practices from department to department are more significant or telling than the statistical differences among the races.

Not everything important or interesting in this data is about race. Indeed, the report answers basic questions few reporters ever consider: how many stops are made overall? How many of those people are searched? How many are arrested? How often is contraband found? Turns out, even overall traffic-stop numbers change significantly year by year. 

The decline between 2019 and 2020 stop levels is understandable, but what explains the near doubling from 2017-2018? Traffic stops were declining during this period statewide. If I were a local reporter in Amarillo, I'd be looking into that story, which is interesting irrespective of racial breakdowns. 

In a town of fewer than 200,000 people, both the doubling of traffic stops to the 2018 apex and the less-than-might-be-expected decline in 2020 could be significant. Digging around in the whys of it, combined with poking around TCOLE's statewide spreadsheet and a little traditional legwork, could generate many different types of local stories. This information isn't available from any other source.

Beyond the Bait and Switch: What we really need from police training reform

Grits has often been critical when reform demands aimed at police are rebuffed by calls for additional training. In the political arena, new training is often proposed (usually by the police unions) as a substitute for policy changes that would actually transform IRL practices. So, for example, advocates called for eliminating arrests for Class C misdemeanors following Sandra Bland's death, and instead got implicit-bias trainings that don't work. I get frustrated, admittedly, with the bait and switch.

But that doesn't mean training is unimportant. Any honest assessment of American policing would conclude that its problems begin with what cops are taught in the academy about what the job is, what they should expect, and how they should behave. Police are trained poorly, often by amateurs, and for too short a time. 

We've discussed how, in Texas, the Commission on Law Enforcement has insufficient staff or expertise to exercise meaningful oversight over police training and curriculum. And even if training were excellent, there's too little of it. Cosmetologists must undergo more basic training in Texas than police officers. By contrast, in Germany police officers train 2.5 years before being deployed in the field.

Austin's police academy had become so dysfunctional that, a year ago this month, the City Council ordered Chief Brian Manley to conduct an audit of its curriculum, setting a deadline of June. They were reacting in part to complaints by a group of cadets who sued the department alleging abusive behavior and incompetence by trainers. The chief and city manager were told at the time that the audit must be finished and improvements to the training program completed before new cadet classes could resume. If they had done that work when they were instructed, only one cadet class would have been delayed.

But in June, City Manager Spencer Cronk returned to the City Council to say they had never begun the audit because of COVID but would like to hold more cadet classes anyway. By that time, though, George Floyd and Mike Ramos were dead and the nation and city had erupted in protest. Council stuck to their guns and unanimously replied, "No audit, no cadet class." Then in the FY 2021 budget which began in October, they called the City Manager's bluff, omitting new cadet classes pending the outcome of the audit process. The Council pledged to revisit the budget in six months, halfway through the fiscal year, at which time changes could be considered. As of this writing, however, the audit still hasn't been completed, much less have needed alterations to the curriculum been identified nor alternative approaches been considered. Instead, the police department and its allies are again pushing to restart the academy before that work has been done.

It's in this context that Grits this morning read a feature in Time magazine regarding police academy training. Texas wasn't mentioned, but the the complications caused by low-quality training and a lack of state oversight struck this writer as a highly relevant, cautionary tale. Every criticism made of training in these other states arises in Texas in spades, in part because we have a disproportionate number of agencies. Texas has about 1/11th of the US population but nearly 1/6th of the nation's law-enforcement agencies. If training at the larger agencies can be problematic, training for smaller agencies amounts to an unregulated hodge podge.

I was also glad the Time article pointed me to this Bureau of Justice Statistics analysis of police recruiting and training, which I'd not seen before. The average length of US police academies is 21 weeks, according to BJS; in Texas, minimum training takes about 18 weeks (696 hours). The Houston Chronicle recently had an excellent report that highlighted some of these shortcomings:

The Sunset report found that Texas requires more time in basic training for cosmetologists (1,000 hours) than for cops (696 hours). Air conditioning and refrigeration contractors, meanwhile, have to put in 2,000 hours of training to get licensed. The Houston Police Department requires at least 48 semester hours of college credit for prospective officers but a high school diploma or GED is enough in other parts of the state.

The type of training officers receive is also out of whack with real world demands. Requiring 48 hours for firearms training and 40 hours for instruction in arrest, search and seizure is appropriate, but the regimen also includes four hours of work on interacting with canines while requiring only two hours on interacting with civilians.

The standard Basic Peace Officer Course includes only four hours for education on “Family Violence, Child Victims, and Related Assaultive Offenses” and no special training for dealing with rape victims.

In Austin, officers get slightly more training than cosmetologists, but less than air-conditioner repair people, before being handed a badge and gun and sent out into the streets.

The Time article emphasized the extent to which basic training has been outsourced to educational institutions, which almost certainly applies to entry-level training for most smaller Texas agencies. BJS reported that:

From 2011 to 2013, nearly half (47%) of the academies that provided basic training for new recruits were based at an educational institution such as a 2-year college (33%), 4-year college or university (7%), or technical school (7%) (table 1). Municipal police departments operated 20% of academies, sheriffs’ offices operated 10%, and state police or highway patrol agencies operated 6%. State Peace Officer Standards and Training (POST) agencies, which typically certify peace officers, operated 5% of academies.

That was a trend I hadn't considered, though I knew places like Sam Houston State are making bank off of police training. But I hadn't understood that half of all training happened at academic institutions, nor considered the implications arising from differences between that training and instruction by department-run academies. 

In Austin, cops are drafted from other duties to teach in the academy for short stints and given little if any pedagogical training or instructional support. Cadets complained that instructors over-used Power Point and appeared to have little understanding of basic pedagogical theory or adult education. One would at least anticipate that instructors at academic institutions might have greater access to teacher trainings and peer support on pedagogical questions. But that may be a false assumption; I have no idea what those academic curricula look like.

Another complaint about Austin's academy was instructors' over-aggressive methods. Turns out, subjecting cadets to a "stress-based" learning experience is a common approach. According to BJS:

Nearly 1 in 4 academies (23%) reported their training environment was all or mostly stress oriented (table 2). State police or highway patrol academies (61%) were the most likely to use this type of training model. For all other types of academies, no more than 32% used a predominantly stress-oriented training model.

These debates are going to surface repeatedly in the coming months, both locally regarding whether and when to resume Austin's academy and at the Legislature as TCOLE undergoes Sunset review. In both instances, more resources are needed to bring either officer training or state regulation up to snuff. 

Though some defund-the-police advocates may be offended, this is one area where Grits and many other reformers don't mind spending more money on law enforcement, particularly if officers are trained for longer and curriculum contents improve. Until the day we abolish police, we have to train them better. Cadets need to be taught under a more regulated, pedagogically sound curriculum, and God forbid, maybe for even as long as the refrigeration-repair guy. That's certainly true in Austin and, if the blue-ribbon panel suggested by the Sunset Commission is ever created, it's a safe bet they'll agree.

Sunset recommendation for a 'blue-ribbon panel' on Texas police licensing agency: Grits wonders what's left to study?

The new Sunset Commission report for the Texas Commission on Law Enforcement came out earlier this month: A once-every-12-years review of agency functions and practices. The good news: They didn't short sell the problems. (See more background here.)

Their issue #1 stated flatly that "Texas' Approach to Regulating Law Enforcement is Ineffective," an observation with which Grits wholeheartedly agrees. They described a "fragmented, outdated system with poor accountability, lack of statewide standards, and inadequate training."

What's more, "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."

This one is close to Grits' heart and familiar to long-time readers of this blog: "TCOLE’s minimum training standards are outdated and ultimately do not meet the evolving needs of law enforcement personnel in Texas." Training was outdated, they found, and continuing education requirements insufficient. The same was true not just for cops but jailers and 911 operators.

Further, Sunset staff opined, "the state’s regulation of law enforcement is, by and large, toothless." In particular, "Regulatory agencies should be able to hold licensees accountable for administrative violations, violations of standards of conduct, and criminal violations. However, state law only allows TCOLE to hold licensees accountable for criminal convictions or deferred adjudications, and violations of TCOLE statute and rule, including continuing education requirements."

The biggest shortcoming they found was the agency's inability to revoke licenses for serious misconduct:

TCOLE lacks explicit statutory authority to take action against other types of serious misconduct [beyond cases resulting in a criminal conviction], even when the behavior is relevant to an individual’s professionalism and fitness for licensure. For example, TCOLE was not able to take action against an officer who recently gave a dog feces sandwich to a person experiencing homelessness in San Antonio. The officer was fired, rehired by the city after arbitration, and then subsequently fired again for a second incident involving the use of feces. In contrast, if a licensee fails to maintain requirements for licensure, like continuing education, TCOLE has the authority to suspend, reprimand, or even revoke the license. In fiscal year 2019, the majority of TCOLE’s administrative enforcement actions, 68 percent, were taken in response to continuing education deficiencies. 

Well, Hallelujah! If the dog-shit sandwich guy can't be decommissioned, what use is a licensing agency?

Even with limited authority, Sunset staff reports between 500-600 officers per year lose their  licenses in dishonorable discharges over criminal convictions. A bit more than a quarter of those are later rehired at other agencies, Sunset staff found.  

These observations, as stark as they are, we've heard before. What's new is the conclusion they reach based on these observations: "Especially in today’s environment, rather than attempting to repair a fundamentally broken system, it is time to take a comprehensive look at how the state regulates law enforcement and make needed changes to protect the health, safety, and welfare of Texans as well as law enforcement personnel."

But after all these harsh criticisms, they propose a "blue-ribbon panel" to evaluate TCOLE's functions, coming back in two years with recommendations. Grits considers that unnecessary. Texas knows what a licensing agency should look like; the state runs a ton of them. They just need to empower the agency in statute and fund them at a level where they can fulfill their mission.

Luckily, Grits has identified a source for all the funds the state needs to ramp up regulation of police officers and do it right: Charge licensing fees, just like the state does for plumbers, hair dressers, doctors and lawyers. We don't need a blue-ribbon panel to accomplish it, just greater political will.

Yes, TCOLE's board is too law-enforcement slanted and their statutory mission too narrow and devoid of accountability functions, but these are just the sorts of things Sunset review is supposed to tackle. What will change two years from now and who are these "blue ribbon" experts whose advice we haven't already heard? Asking for a friend.

***

Meanwhile, coupled with other recent data, looking at TCOLE licensure reminds me that the Texas law-enforcement ecosystem is incredibly vast. According to the federal Bureau of Justice Statistics, Texas in 2015 spent $16 billion on criminal justice, which broke out thusly:

• Police: 46.2%
• Judicial: 17.8%
• Corrections: 36%

Texas has nearly 80,000 licensed officers on any given day working for nearly 2,800 agencies, according to TCOLE. In 2019, reported Sunset staff, those officers "responded to reports of 120,508 violent crimes and 685,371 property crimes." In addition, we know from racial profiling reports that Texas police made 9.5 million traffic stops in 2019, giving 5.3 million citations for Class C misdemeanor traffic and parking violations plus another 1.1 tickets for municipal-ordinance violations (reported the Office of Court Administration). Throw in the Drug War - about a third of new felony charges are for drug offenses, reports OCA - and that's your 30,000-feet-view of the scope of Lone-Star law enforcement.

Most of this apparatus has operated unregulated and unobserved for many years, not just TCOLE but definitely including it. Governor Abbott has been criticizing advocates he says want to "defund the police" (though no Texas city has actually done so). Those sort of politicized stances go a long way toward explaining why law enforcement remains an area of Texas government untouched by either fiscal-conservative parsimony or 21st-century modernization during the GOP's 20-year reign over the state legislature.

The Sunset report calls on the Legislature to accept the mantle of responsibility for regulating police and encourages them to start with the Texas Commission on Law Enforcement. Grits agrees that's as good a place as any, if the Lege is looking for a spot to put their shovel in the ground.

A chance to expand police oversight: Why Texas should begin charging cops and jailers licensure fees

Readers may recall Grits recommended over the summer that the agency licensing Texas peace officers, the Texas Commission on Law Enforcement (TCOLE), begin charging licensing fees to Texas cops and jailers. The idea was that they could use the "extra" money to expand their oversight role. 

But a new document from the Legislative Budget Board shows that TCOLE may need to begin charging licensure fees just to keep its funding at current levels. Here's why:

Since 2004, TCOLE has funded most of its activities using General Revenue–Dedicated Funds from Account No. 116, which is composed of consolidated court fees collected pursuant to the Texas Local Government Code, Section 133.102. Currently, multiple agencies spend funds from Account No. 116, including TCOLE, the Comptroller of Public Accounts, and the Department of Public Safety. In addition, employee benefits are paid from this fund. The amount of revenue collected has been decreasing for at least the past 15 fiscal years.

Check out this chart showing the rate at which this account has been outspending intake:

So the account balance is scheduled to drop below expenditures by the end of the next biennium, meaning TCOLE and other agencies funded by Account 116 must turn elsewhere for funding. Or as LBB put it, "Without replacement, the loss of this funding would halt the majority of TCOLE operations." In that light, for TCOLE, charging licensure fees makes loads of sense.

LBB suggested four options for raising revenue for Account 116, but none of them involved licensure fees. That's a mistake not even to consider it. The people who license doctors, lawyers, plumbers, etc., are all financed via licensing fees, why not police and jailers?

Grits wanted more money for the agency to facilitate more oversight and compliance functions. E.g., in FY 2019, LBB reported, TCOLE audited 770 agencies for "law and rule compliance" and found "deficiencies" in 349 of them. It's great that they're catching violations after the fact, but that's an awfully high rate of deficient audits.

Moreover, Texas is one of only a handful of states where the peace-officer licensing agency can't revoke licenses of officers for serious misconduct. Here, we require them to be convicted of a felony first, which almost never happens. But a decertification program would require resources, particularly for attorneys, and licensure fees are the most obvious way to pay for them. 

At the moment, TCOLE's budget runs around $4 million per year. Assuming a) a 95% payment rate, and b) licensure fee rates of $50/year for police, $40/year for 911 operators, and $30/year for jailers, Grits estimates about $4.9 million could be generated. One could fiddle with those fee amounts to adjust that figure up or down.

There are also nearly 3,000 agencies authorized to provide training who could also be asked to pay for the privilege. At $500 per year, ~$1.4 million could be generated from that cohort.

If Texas must begin charging licensing fees, anyway, it should do so at a level that lets the state expand oversight functions, not just keep up the status quo.

Related: See Grits' discussion of TCOLE's Sunset review.