by Ed Lyon
Chapter 552, § 108(a)(2) of the Texas Government Code (“TGC”) was passed by the state legislature in 1979. The law’s intended purpose was to protect the privacy rights of innocent and wrongfully convicted defendants who were accused of committing a crime but were either never formally charged or, if they were formally charged, were never brought to trial. Chapter 552, TGC, is entirely devoted to freedom of information and privacy laws.
When requests for information are made to a government agency in Texas that the agency does not wish to comply with, the request is forwarded to the Texas Attorney General (“AG”) for review.
An AG opinion is nearly always complied with by the parties involved, and those opinions are usually published in the annotated statute books along with court decisions. An AG opinion may be challenged in court, and some have actually been reversed. In other cases, legislation may be passed to correct an AG opinion that is contrary to legislative intent.
In 2003, the AG found a novel misuse for 552.108(a)(2), TGC. Whenever information was requested concerning an in-custody death, it would be denied under the reasoning that since the dead person was never tried and the deceased’s case did not end in a conviction, the privacy provision applied. Well, of course, the case was never adjudicated because the defendant died. Because of the way in which the AG would consistently misuse and misapply this statute to withhold information regarding in-custody death requests, the statute would eventually earn the nickname “dead suspect loophole.”
Houston attorney Joe Larsen recently stated the loophole has, over the years from 2003 to the present, become “big enough to drive a freight train through.” Hard statistical data more than justify that statement.
Between 2005 and 2018, there were 9,077 in-custody deaths in Texas. This averages out to 698 prisoners dying each year. This is 2.7 prisoner deaths per county each year for Texas’ 254 counties.
According to data compiled by reason.com, the Texas Attorney General responded to 823 requests for rulings on 552,108(a)(2), TGC, in 2003. The number of requests for in-custody death information has steadily grown, reaching a whopping 3,046 requests in 2017.
News radio KXAN’s own audit in November 2017 analyzed data from the 21 largest Texas police agencies. That audit found 154 public information requests concerning 52 in-custody deaths cited the “dead suspect loophole” as justification to deny compliance with those requests. In the absence of any court rulings on the rampant misuse and misapplication of 552.108(a)(2), TGC, by law enforcement agencies, El Paso State Representative Joe Moody has pre-filed a bill designed to correct this for the 2019 Texas Legislature’s consideration.
Especially noteworthy misuses of 552.108(a)(2), TGC, occurred in 2013 in Austin and Mesquite, Texas. In Austin, 70-year-old gun safety instructor and active shooting range operator John Schaefer was gunned down by a city cop. The cop claimed that Schaefer drew his own pistol on the officer, an event Schaefer’s family and friends find incredulous, given his vocation and avocation, both dealing professionally with firearms. In Mesquite, a Dallas suburb, Graham Dyer was experiencing a less than optimal LSD experience when he was arrested by city cops. He was taken to a hospital less than two hours later where he would die the next morning from head trauma. In both cases, the queried cities would deny information requests, citing the “dead suspect loophole,” which will hopefully close soon after the 2019 Texas legislative session that ends May 27.
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