'Dead suspect loophole' bill gets hearing after Uvalde

AUSTIN (KXAN) -- Nearly a year after 19 elementary school students and two teachers were murdered in Uvalde -- followed by a steady stream of incorrect and incomplete information released to the public -- Texas House lawmakers heard testimony on a bill that would end the state's controversial "dead suspect loophole."

For years, KXAN has investigated this loophole, which allows police to keep information secret in closed criminal cases that don't go through the court process -- even when a suspect dies in custody.

"Uvalde underscores how crucial this is: The video you've all seen of that incident," said Rep. Joe Moody, (D-El Paso), referring to the hallway video at Robb Elementary showing law enforcement inaction, "is only out there because [House Investigative Committee on the Robb Elementary School Shooting] Chairman [Dustin] Burrows took the courageous step of announcing that he intended to release the video, in violation of the law, to get the truth out. If he hadn't, it would still be secret today -- even for the families whose children never came home that day."

Moody introduced HB 30 this legislative session and has tried, repeatedly, to close the loophole. This time, however, he said the need is "urgent" following Uvalde.

“It’s something that’s been a problem for a long time," said Moody. "But the need for this bill came into crystal clear focus after Uvalde. So, it’s more urgent now than ever.”

Moody, and transparency advocates, had previously expressed concern to KXAN that the loophole would be used to block information related to the massacre because the shooter was dead.

Last year, Republican Speaker of the House Dade Phelan tweeted it was "time....to end" the loophole "for good."

“More than anything, the families of the #Uvalde victims need honest answers and transparency. Period,” Phelan tweeted on June 1, 2022. “It would be absolutely unconscionable to use the ‘dead suspect loophole’ to thwart the release of information that is so badly needed and deserved right now.”

“I think it’s time we pass legislation to end the dead suspect loophole for good in 2023,” he added at the time.

'Absurd and cruel'

Kathy Dyer was first in line to testify for the bill. For this mother, it's a familiar spot. She did the same thing back in 2019 after sharing her family's story with KXAN.

In August 2013, six days before her son Graham Dyer's 19th birthday, he died mysteriously in police custody. When the family tried to get answers from the City of Mesquite, they were blocked by the city and the state attorney general -- because their son was dead, Dyer testified to lawmakers, again, on Wednesday.

"So, the city can choose to seal all its records relating to the interaction between Graham and the police, as well as records related to his brief time in jail, because Graham is dead," Dyer said. "This twisted interpretation of the Public Information Act is absurd and it is cruel. And, I hope that I’m not back here two years from now, because nothing has changed.”

“We just couldn’t understand how somebody could be [an]18-year-old kid, 110 pounds, get arrested," Graham's father, Ryan, told lawmakers, "and then wind up dying that night."

It took the family two years and a federal Freedom of Information Act request with the Department of Justice -- which investigated their son's death and obtained video from the city -- to start getting answers to the family's "many questions," they told lawmakers.

Only then did they learn a stun gun was repeatedly used on Dyer while he was in custody, resulting in his death. Moody said video showed one of the officers telling him: "I'm going to kill you mother f----r."

"That's what they discovered," Moody said.

Moody and the family said they should not have had to circumvent Texas' public record laws by going through the federal government just to find out how their son died while in custody. Transparency advocates, including the Texas Press Association -- which represents 400 of the state's newspapers, including the Uvalde Leader News -- called the loophole one of the most "egregious abuses" of Texas' transparency law.

The exemption to the Public Information Act was originally introduced in the 1990s to protect innocent people who got "swept up in investigations," Moody said. It has been misused, he argued, to "cover up" cases like police shootings and in-custody deaths.

Law enforcement opposed

Representatives of the Austin Police Association and the Combined Law Enforcement Associations of Texas pushed back against the bill. They are concerned that unrelated and unsubstantiated allegations against officers could be made public and damage reputations.

The president of CLEAT, Marvin Ryals, said his organization would support the release of information in a case -- like video when a suspect dies in police custody -- as long as it doesn't interfere with an ongoing investigation.

"Other parts not pertinent" to a particular case should not be released, Ryals said.

Moody accused law enforcement of misrepresenting his bill, which he said is narrowly tailored to releasing only information about a suspect who is dead or in a persistent vegetative state. The bill exempts peace officers.

"To come up here and tell you that their....[entire officer] file would be inexplicably released to the public is inaccurate, or is outright disingenuous," said Moody. "That is not what the bill does and they know that."

Moody said he worked with the Texas Attorney General's office on the language of the bill. He said it would not make officers' past allegations public unless it directly pertained to a dead suspect.

"The bottom line is when a citizen interacts with the government and ends up dead we need to know why," said Moody. "There’s literally no situation where the public has a greater interest in knowing."