State of Texas: Mask mandate pushback, crime bills, Dead & Undone investigation

Texas Politics

AUSTIN (Nexstar) — As COVID-19 cases continue to rise across the state, local officials are looking at ways to increase compliance without overstepping Gov. Greg Abbott’s mandates.

In the Panhandle, hospital systems have been strained for nearly a month.

“Right now, Amarillo does not have enough ICU beds. We don’t have any hospitals, or ventilators, telemetry units—you go to one hospital and the lab people are sick,” Dr. Whit Walker with Texas Tech Physicians explained.

That’s why Amarillo City Council voted Monday to pass a new ordinance that will require businesses to tell patrons to wear a mask.

“No matter what your opinion is on masks, I respect your opinion, whether it’s the same as mine or different than mine. But I am responding to what healthcare workers are asking and telling us that we need,” Mayor Ginger Nelson said Monday.

She explained the businesses would not be in charge of enforcing it but would have to display that masks are required indoors.

“We’re not asking them to police things. We’re not asking them to enforce things. We’re just asking them to be a partner with us in helping our hospital workers and to decrease the number of people that are in our hospitals,” Nelson explained.

Businesses that do not comply will be fined, but they can fight the fine in court just like they would a typical citation. Other cities that have tried to enforce additional restrictions have faced challenges.

In El Paso, where hospitals have been at capacity since October, the county judge ordered a stay-at-home order. Shortly after, a federal court ruled he did not have that authority.

Gov. Greg Abbott said the judge wasn’t properly enforcing what was already in place.

“Some local officials are not using the tools that are available to them, to make sure that they are taking every step they need. So just giving more tools won’t mean anything,” Gov. Abbott said in a press conference last week.

Nelson said she’s confident Amarillo’s new rule abides by what the governor has put in place.

“That was carefully researched by our city legal team. And I feel like we’re standing confidently that we’re in a good position on that,” Nelson explained.

When asked to provide specific examples of how cities could better enforce the governor’s existing mandates, the Office of the Governor provided this statement:

“Under the Governor’s executive orders, local officials and law enforcement are encouraged and empowered to enforce existing protocols to help mitigate this virus, such as the mask mandate, and occupancy limits under law, as they did before the pandemic hit. Working with our local partners and business leaders, the State of Texas has assisted with that enforcement by deploying additional TABC officials to ensure compliance. The protocols are proven to work, but only if they are enforced, as with any law.”

– RENAE EZE, SPOKESPERSON

Walker Monday said he’s glad the city council passed the new rule.

“We need help. We need people to wear their masks and stay healthy. We need to decrease, at least decrease the acceleration,” Walker said.

He said he wishes masks had not become so political.

“We’ve gotten so divisive in this country where, ‘I don’t listen to you’ and ‘you don’t listen to me,’ and we were fighting over stuff that doesn’t need to be fought over. This mask does not kill people. It does save lives,” Walker said.

Walker says he wishes everyone would just listen to the science.

“It just does not have to be cough or sneeze. If I just breathe, I can move that virus five feet. And if you’re standing in my way, God help you, because you may have just gotten sick,” Walker said.

Bills aim to create new crimes in Texas

The Texas District & County Attorneys Association, an advocacy group for prosecutors across the state, quipped on Twitter last week about state lawmakers’ effort to address criminal justice reform.

“Some things never change” was followed by a shrugging emoticon.

The TDCAA noted that out of the more than 800 bills filed ahead of the upcoming legislative session, 33 bills would create one or more new crimes, and 17 bills would increase the punishments for existing crimes, despite the expressed focus on criminal justice reform by many lawmakers.

Texas has more than 2,000 criminal offenses, already. But the bills, focusing primarily on gun control by Democrats, are unlikely to pass. Thousands of bills will be filed in the 87th Legislature and most won’t see the light of day—just 820 of more than 7,000 bills became law in the last legislative session.

Criminal justice reform advocates said they’re committed to fighting for fewer crimes and more realistic punishments.

“I hope policymakers will recognize that we need a system with a smaller footprint that focuses on addressing violent crime, addressing conduct that really imperils public safety,” said Marc Levin, chief of policy and innovation for Right on Crime, a conservative-leaning criminal justice reform organization. “Even for those things that are crimes, we need to look at what should subject someone to the possibility of arrest.”

Criminal justice issues will be at the forefront when lawmakers return to the Texas Capitol in January. The George Floyd Act, proposed by state Rep. Senfronia Thompson and state Sen. Royce West, would ban chokeholds and require police officers to step in when excessive force is being used by another officer.

State Rep. Gene Wu, a Houston Democrat, said around 25 new crimes are adopted each legislative session. Still, he believes opportunities for reform like the decriminalization of marijuana will be the focus of the incoming legislature.

“If we are no longer in love with just locking everyone up for everything, let’s make that true,” Wu told KXAN. “Many of the things that we want to do have a side benefit that the Texas Legislature is going to love, and that is it’s going to save money.”

Before becoming a senior policy analyst for the Texas Criminal Justice Coalition, Doug Smith spent six years in prison himself for challenges connected to mental illness and substance abuse disorder.
Smith told KXAN that lawmakers often attempt to address the crime instead of a solution, like prevention, which he will advocate for in the upcoming legislative session.

“What we know is that increasing penalties doesn’t actually prevent property loss or harm to communities,” Smith said. “Increasing penalties just extends the amount of time that someone might be punished for that criminal activity.”

Dead & Undone

When someone dies in the custody of Texas law enforcement, state law requires that agency to submit a specific report to the attorney general detailing the incident. The report is meant to promote transparency and accountability, but our investigation, Dead & Undone, finds hundreds of reports in recent years filed incomplete or late, leaving the public and families without answers.

If someone died in police custody in a far-flung part of Texas in 1983 – and it didn’t make the news – you might never have known. Such cases could easily be kept quiet, potentially swept under the rug and away from scrutiny.

That’s how Walter Martinez described a dark era in law enforcement transparency — the early 80s — a period, he added, that lately doesn’t seem so far removed from what’s happening across the state today. Questions over police tactics and public information are once again top of mind.

Back then, Martinez was entering his first session as a Democratic state representative from San Antonio. He knew no state agency kept track of all the people dying in jail, prison and police custody. Without that information, it was exceedingly difficult to analyze patterns of deaths or identify solutions, he said.

Martinez changed that. With sponsorship from then-state-senator and current Democratic Congressman Lloyd Doggett, Martinez filed and passed Texas’ law requiring jails and other law enforcement agencies to submit a death report to the Texas Attorney General’s Office.

Former State Rep. Walter Martinez, D-San Antonio, carried legislation in 1983 that created requirements for Texas law enforcement agencies to report custodial deaths to the attorney general. (Texas House of Representatives Photo)

The new law required law enforcement agencies to provide details about the incident and cause of death. The reports would be public, and the penalty for failing to file them a Class B misdemeanor punishable by up to 180 days in jail. At that time, the law required the reports to be submitted within 20 days of a death, but that timeframe was later lengthened to 30 days.

“The purpose was to create a central databank and hopefully with that databank to begin to analyze it and look at what is the problem, and how can we begin to address future legislation to address this problem,” Martinez said in an interview with KXAN. “It was about trying to create some transparency and some accountability in the system and to hopefully use this data for future legislation.”

To date, more than 13,000 custodial death reports have been filed, providing perhaps the most comprehensive collection of in-custody death records in Texas. The information is available online, categorized and searchable by law enforcement department and deceased individuals’ names.

Martinez said he passed the most robust bill he could at the time, with the intention of returning to improve it later. But, he didn’t win a second term and significant alterations to the law have not happened.

While the in-custody death database provides critical transparency in fatal cases, a KXAN investigation has found there are still lingering problems.

Despite the current law requiring agencies to file the reports within 30 days and to include all relevant facts, such as a cause of death, a KXAN review of the last five years of reports found hundreds have been filed late and more than a hundred others have been left incomplete for over a year.

KXAN used records from the attorney general’s office as well as data compiled by the Texas Justice Initiative, a nonprofit that collects and provides criminal justice data to the public, to better understand the problem.

Most cases have been reported correctly, and the failures found by KXAN represent a fraction of all cases submitted to the attorney general. Still, KXAN found no instance of enforcement or punishment in Texas’ counties where the most violations apparently happened.

“You know, you feel bad that the intent that you had for that piece of legislation was not — is not — being achieved,” Martinez said. “It’s unfortunate. I think it’s bad.”

Law enforcement transparency and reform were a primary focus for Martinez  back then, he said. Now, with the deaths of numerous people of color in police custody in recent years sparking national protests and calls for criminal justice reform, another lawmaker says he is interested in reexamining the custodial death report law during the 2021 legislative session.

KXAN found 372 reports filed later than 30 days after a person’s death, since 2015.  Nearly half of those, or 179, were filed late in 2020 by the Texas Department of Criminal Justice’s Office of Inspector General, according to state data. TDCJ operates the state’s prisons, and its Office of Inspector General is an independent law enforcement arm that investigates deaths and crimes that could affect TDCJ.

Texas law requires law enforcement agencies to submit a custodial death report within 30 days to the state’s attorney general when a person dies in their custody. A KXAN analysis found 372 reports filed between January 2015 and October 2020 missed that deadline. Half of those came from the Texas Department of Criminal Justice’s Office of Inspector General in 2020 – a year that saw numerous coronavirus-related fatalities inside prisons. (SOURCE: Texas Justice Initiative, Texas Attorney General’s Office)

State Rep. Eddie Rodriguez, D-Austin, is looking at potential updates to Texas’ custodial death reporting requirements for law enforcement agencies in 2021. (KXAN Photo)

Though the number of incorrect reports represents a fraction – roughly 10% — of all the reports filed since 2015, State Rep. Eddie Rodriguez, D-Austin, said KXAN’s analyses “highlight the need to change the law for more transparency.”

Rodriguez said he is looking at the law to see how the enforcement mechanism could be improved. The reporting law’s purpose is to provide “transparency, more information and timely reporting,” he said.

“I see this as a criminal justice reform issue, and there’s a lot about our criminal justice system that we have to update, to reform,” he said. “Add it to the list.”

KXAN contacted more than a dozen departments with late and incomplete reports. Some acknowledged the reports should have been filed on time. Many departments did not respond to multiple requests for comment. Some said the reports in question were filed correctly but could not offer clear evidence to support that claim.

The attorney general’s office keeps its custodial death database on the internet, and every report is available to download. Law enforcement agencies fill out the forms online.

The first version of a custodial death report is labeled “original.” If the original is amended, it is labeled “amended” with a revision number. For example, if a report has been amended twice, the database would have three reports: the original, the first amended version and the second amended version. Each time a submitted report is amended with new information, the site notes the date and version of the report, according to the attorney general’s office and the step-by-step training guide given to law enforcement agencies for inputting a custodial death report, which KXAN obtained through the Texas Public Information Act.

“We do not create or alter reports for other law enforcement agencies. We do indicate whether the report available in our database is the original or an amended version submitted to our office,” the attorney general’s office said.

The in-custody deaths of Black men across the country have created an urgent call from civil rights and criminal justice reform advocates to end in-custody deaths.

According to research by the NAACP, throughout the nation Black people represent a disproportionate number of those killed in police custody.

“White people make up a little over 60% of the population, they only make up about 41% of fatal police shootings,” according to the NAACP. “Black people make up 13.4% of the population, but make up 22% of fatal police shootings.”

Texas also has a similarly disproportionate number of Black people dying in law enforcement custody, according to a KXAN analysis of the past 15 years of in-custody deaths. While Black people represent 13% of the state’s population, they account for 29% of deaths in jail, prison or police custody over the past 15 years, according to U.S. Census and state records.

Hispanic people make up roughly 40% of the Texas population, according to the census, and account for 28% of all custodial deaths, state records show.

KXAN identified nine death reports filed late by the Tarrant County Sheriff’s Office. That agency said the employee responsible for some of those reports is no longer employed, so “his reason for not reporting in a timely manner would be unknown.” In some cases, information needed to fill out the reports was not readily available, the sheriff’s office said. The agency also said a separate report that was left incomplete for more than a year was “an administrative error that is being corrected.”

The Bexar County Sheriff’s Office claimed four of its reports should not be considered late because the department began creating them within 30 days but just didn’t submit them until later because they were waiting for the medical examiner’s findings.

“By creating a CDR, we have established the file on the custodial death with the OAG. Almost, if not all, custodial deaths reports you referenced have been initiated on the OAG’s database prior to the 30 days as required,” said a Bexar County Sheriff’s Office spokesperson. Bexar County Sheriff’s Office did not provide an explanation for three other late reports.

The agency also left two reports incomplete for more than a year. One incomplete report was filed under a different administration and “under review.” In the other case, there was a “error with the system,” and “the cause of death was verbally relayed” to the attorney general, said a Bexar County Sheriff’s Office spokesperson.

Amanda Woog — an Austin attorney, co-founder of Texas Justice Initiative and executive director of the Texas Fair Defense Project — pointed out “there aren’t exceptions to the 30-day rule.”

Agencies are supposed to “draft a report” and “file a report,” she said.

In 2016, Woog penned an Op-Ed in the Houston Chronicle, saying Texas and California have two of the strongest custodial death reporting laws in the country. However, Texas’ law requires county prosecutors to investigate and bring charges when the law is not followed, and that has not been happening.

“Unsurprisingly, I could not find a single prosecution under this law in its 30-plus year history,” Woog wrote.

The attorney general’s office said it is “merely a repository for custodial death reports,” does not have authority to enforce the law and does not audit the reports to make sure they are done correctly. When a person contacts the attorney general’s office claiming a report has not been filed, the office encourages them to contact the law enforcement agency directly. The attorney general’s office added that it may “make a courtesy telephone call to the law enforcement entity.”

The attorney general’s office said its computer system does generate and send reminders to agencies that have started a report but not finished it. KXAN requested a record of all those reminders, but the attorney general’s office said its computer system did not save them, and they could not be produced.

In search of a trace of enforcement of the law, KXAN filed requests with more than 10 counties – including Harris, Dallas, Tarrant, Bexar, Travis and El Paso — where law enforcement agencies had multiple instances of late or incomplete death reports, according to state records. No counties had a record in the past 10 years of a charge against an individual with failing to properly submit a custodial death report.

“There isn’t a lot of teeth to the law,” Rodriguez said. “I’m looking into this right now as far as what we might be able to do, or what I might be able to do, next session in a bipartisan way to try to tighten that up to put some teeth into it, whether it’s through the attorney general’s office, or to ensure that our local district attorneys are enforcing the law that requires that report to be done within 30 days.”

Rodriguez said he is interested in updating the custodial death report law in the upcoming 2021 legislative session. But, if attempts at transparency reforms from the last session in 2019 provide a glimpse of what is to come, Rodriguez and others looking to shore up the law may face opposition from police unions.

Those unions, including two of the largest in Texas — Combined Law Enforcement Associations of Texas (CLEAT) and the Texas Municipal Police Association (TMPA) — advocate on behalf of law enforcement and have powerful lobbying presences at the Capitol.

In 2018, KXAN launched an ongoing investigation into Texas’ “dead suspect loophole,” sharing families’ emotional stories of this “unintended” aspect of the state’s Public Information Act and sparking legislation to increase police transparency surrounding custodial deaths. 

In 2019, CLEAT opposed changing a piece of Texas public records law that has created the so-called “dead suspect loophole.” That law allows police to withhold evidence in cases that have not resulted in a conviction or deferred adjudication. The loophole exists because police can withhold records, such as video evidence, in cases where a suspect died while being arrested or in jail awaiting the conclusion of their case. The person’s death means their case will never be resolved; therefore, police do not have to release the evidence.

CLEAT has more than 25,000 members across Texas, according to its website.

Kevin Lawrence, executive director of TMPA, said he believes the investigation and review process surrounding custodial deaths is already extensive.

“Most in-custody deaths, we believe, are being investigated by multiple agencies anyway,” Lawrence said in an interview with KXAN.

TMPA represents 30,000 law enforcement officers in 1,900 medium and smaller-sized agencies throughout the state, Lawrence said.

Regarding a lack of punishment for not following the custodial death reporting laws, Lawrence said he would “guess” there hasn’t been legal action taken because those failures were unintentional and the officers probably “weren’t aware.”

Though “critical incidents” have focused public attention on misconduct, the number of deaths in custody has been “fairly stagnant,” Lawrence said.

Texas’ yearly totals of custodial deaths have gradually trended upward over the past 15 years, according to state records, but the state’s overall population has also grown.

“We believe law enforcement agencies should follow the rules just like everybody else does. But, at the same time, there should be a contemplation of, you know, like we have in the penal code, every offense requires a culpable mental state,” he said.

If an agency intentionally withheld a record, that would require a more severe punishment. But, if an agency missed a deadline or filed an incomplete report unintentionally, that should be handled with a lower-end punishment, Lawrence said.

Lawrence said TMPA did not register an official position on the dead suspect loophole bill in 2019, but his organization did have concerns about “a mandate to release unsubstantiated allegations against officers before the investigation of those allegations had been completed.” 

Herman Titus, 21, died after collapsing in his cell at the Travis County Correctional Complex in 2017. (Austin Police Department)

KXAN’s previous investigation into the ramifications of the dead-suspect loophole profiled the case of Herman Titus, 21, who died in the Travis County jail. Titus’ mother, Demeisha Burns, struggled for years to get more information about her son’s death.

Titus died June 19, 2017. He had been charged with intoxication assault after allegedly driving a car under the influence, crashing and injuring a passenger. After his arrest, he complained of head and upper body pain and tingling in his arms and fingers while in jail. He later collapsed in his cell and suffered a seizure. He was pronounced dead at the hospital, 27 days after his arrest.

Titus’ name resurfaced in this latest investigation, when KXAN found the Travis County Sheriff’s Office had left his custodial death report incomplete — without the medical examiner’s manner of death — for more than three years. It was not until KXAN asked about Titus’ death report that TCSO completed it in September. Most details from the autopsy were not included, but TCSO did note the preliminary autopsy found an enlarged heart. The final report says Titus died from hypertensive cardiovascular disease, a “natural cause of death.”

Regarding Titus’ incomplete report, TCSO said its “detective should have gone to the AG’s site and updated the autopsy findings once they were finalized.”

Titus’ case was one of two TCSO did not fully complete since 2015. Additionally, KXAN found five other cases in the past five years in which TCSO did not submit custodial death reports within 30 days.

TCSO said all the cases highlighted by KXAN “occurred under a previous administration and were all reported to the Texas Commission on Jail Standards within 24 hours,” according to TCSO’s statement. “The appropriate staff have been notified of their duties and clerical issues have been rectified. This is a matter we take very seriously. TCSO has not been cited by the Attorney General or any other entity regarding the reporting of deaths in custody.”

TCSO also said it notified the public of the deaths, via press release, in one to four days. Travis County Sheriff Sally Hernandez declined to interview for this report.

Burns said she wanted to understand what happened to her son. Any additional information, such as the complete custodial death report, would have helped her decide if she should pursue a lawsuit against the county.

“Families want to know, and they don’t want to wait months and years out to get this information,” Burns said. “I wanted to know the same day it happened. And even by the time I got my son in the ground, there still was no answers.”

Demeisha Burns sits in her family’s Bastrop home in 2018, a year after her oldest child, Herman, died after falling unconscious in his Travis County jail cell. (KXAN Photo)

Burns ultimately did not sue the county. She attempted to hire an attorney but was turned down due to lack of available evidence. Regardless of whether her son’s case warranted a lawsuit, Burns said the information would have helped her have closure.

In 2018, KXAN uncovered a trove of records that helped shine light on the cause of Titus’ death, including internal investigation reports and video of the final moments of the young man’s life.

After learning more about her son’s case from those records, Burns later testified at the Capitol in favor of a bill that would have closed the dead suspect loophole. That legislation, authored by State Rep. Joe Moody, D-El Paso, failed to pass. Moody tells KXAN he plans to file the bill in 2021, and Burns said she would again support police transparency efforts in the upcoming session.

“They gotta stick to the program. You want to be responsible. You need to make sure that your job is done. Hand it over to the next person; next person needs to make sure that they job get done,” she said. “If all this information is supposed to be reported back to the public, back to the Attorney General’s Office, that information needs to be there fully, so we can get it.”

Inside the Investigation

Few organizations outside of the Texas Justice Initiative keep close track of the state’s custodial deaths and whether any reports may be missing or filed incompletely. KXAN used TJI’s database, which is free to the public and updated monthly with every available data point in more than 10,000 reports.

A KXAN analysis of Texas Attorney General records reveals which law enforcement agencies most often filed late custodial death reports between January 2015 and October 2020. The Texas Department of Criminal Justice’s Office of Inspector General topped the list with its numbers nearly doubling in 2020, as the coronavirus hit prisons across the state.

Eva Ruth Moravec, TJI’s executive director and co-founder, said she has not seen a clear pattern of any particular agency being a “repeat offender” of violating the custodial death reporting rules. However, since the onset of the pandemic, one agency has stood out in recent months: the Texas Department of Criminal Justice.

“They have had dozens of reports go unfiled for more than 30 days,” Moravec said. “The custodial deaths that have taken place in TDCJ facilities this year are much higher than in previous years, and they’re swamped.”

TDCJ has been slammed by coronavirus, with over 2,000 active cases in 93 of the state’s 102 facilities in early November. TDCJ has reported more than 25,000 total cases of the virus in the state’s prison population, including more than 60 confirmed deaths and at least 40 more presumed deaths still under investigation.

Between 2015 and 2019, TDCJ’s OIG filed five reports late, according to a KXAN analysis of attorney general’s office records. In 2020, the number of late reports rose to 179, state records show.

John West, the OIG’s general counsel, attributed the late reports to a personnel issue. Since KXAN contacted him, West said his agency had gotten up to date on the reports.

“As a result of staff departures, and we’ll just say an ill-advised hire of an employee — we got in the hole,” West said. “Now we are caught up, I believe, at this point in time.”

In her experience, Moravec said reporting mistakes are typically unintentional human errors, “an individual being uninformed” or staff turnover.

“It’s not necessarily an attempt to cover up a death. But, you know, you have to wonder if that possibility exists, right? When you know that there can be these very long lags, as well as just completely missing reports altogether,” Moravec said. “And there is no mechanism to really compel these agencies to file their reports when they are missing.”

Moravec said she hopes for continued improvements to the law with the upcoming state Legislature, and she pointed to incremental legislation offered by former state Rep. Eric Johnson, D-Dallas, that progressively “chipped away” at shortfalls in the reporting law for officer-involved shootings.

“The whole point of collecting data is to be able to say what we’re doing right, what we’re doing wrong, where we can make improvements and what consequences our actions have to potentially change policy and make things better,” she said.

Martinez, the author of the bill creating custodial death reports, echoed Moravec’s sentiment. The original idea was transparency and building a dataset to understand shortfalls in policing and how to prevent deaths. Martinez expected the law would need improvements; unfortunately, he said, that forecast was right.

“It’s kind of a sad commentary that we are continuing to deal with those issues today. It just shows how much greater progress and reform is needed in our system,” he said.

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