86th Legislative wrap-up: The righteous battle CLEAT fought (Full-Story)

By: Chris Jones


I am going to tell you a story. And it is NOT a short story. So my first goal is to convince you how important it is for you to invest the time to read and digest the story.

First, you need to know that this was the toughest legislative session CLEAT has faced in my 36 years representing you at the Capitol.  We were under constant attack.  You need to know by whom, and you will be surprised to find out some of them.  You need to understand that this is only the beginning and you need to know what to expect in the future.  You need to understand how important it is for you to be involved in your local legislative races and to participate in CLEAT PAC.

If you are a CLEAT member, it is important for you to know how engaged your organization was in the battles that were waged at the Texas Capitol.   If you are a member of another organization, you need to understand this as well. And you need to know exactly how you were represented by those groups. Why? Because you should care whether or not your interests are being represented and your rights defended. And you need to know if you are getting the best bang for your hard-earned membership dues.  Some loyal members of the “other guys” will say we are just bashing them. I commend them for their loyalty.  But the fact is, the truth hurts! If you can’t argue the facts, you deflect from the issue at hand.

Most of you reading this are front line peace officers who are required to base everything you do on “evidence”. Well, I am not going to sling toy arrows with a rubber cup on the end hopping for them to stick somewhere.  Instead of propaganda,  I am going to back up everything I talk about with physical evidence.

Every bill has a record. Texas Legislature Online is a website that is your window to the facts. In most cases, when a bill is heard either in committee or on the floor of the House or Senate, it is a recorded event. So you can watch for yourself what was said.  Also posted online are witness lists for bills heard by legislative committees. Those who testified or registered for or against bills are listed on those witness lists.

You need to know that CLEAT was the only statewide law enforcement association to take the podium and testify this session against the worst of the worst bills. You might ask why this is important. It is because legislators are in a club. They are friends. They are looking for a reason to support bills sponsored by their friends so that those same friends will support their bills.

We believe that our job is to represent the best interests of our members.  If we don’t stand up and tell legislators why we are for or against an issue, then those same legislators are free to do whatever they please.  CLEAT is absolutely determined to be “on the record” so there is no mistake as to our position on critical issues that affect you, your family, and your job.  In our view, if the bill involves a major issue that affects you, simply signing up “for” or “against” it and then leaving doesn’t cut it.  Sometimes it is about being heard and answering the tough questions from the podium.

So this article will provide documentation on the bills we talk about so you can go and “hear it for yourself”.  Or you read it for yourself.  Links to the documentation will be included so that you can simply click and go. There will also be links to articles published online by media outlets or other organizations. By reading and seeing what others are saying, you can see that it is not just us publishing a narrative, but instead, we are giving you the information to judge for yourselves.  After digesting this information, you can ask who really did have your “Six” during the legislative session. I am convinced you will see that it was CLEAT.

Now, don’t get me wrong, I am not saying that other groups did not show up at the Capitol and participate in the process.   And we made a concerted effort to work with them this session on a number of issues.   But when a bad amendment was added to a bill on the house floor that hurt cops, we agreed to issue a joint press release with those other groups. But at the last minute those groups, not CLEAT, decided to back out of the press release.

So you need to evaluate the overall body of work and look and see who was engaged in the major battles that law enforcement faced.


They Really Do Hate Us!

Every one of you is very familiar with the Black Lives Matter movement that became nationally known after the deaths of Michael Brown (Ferguson) and Eric Garner (New York City).  What you may not know is that a number of other groups have splintered off under names that lend themselves to reasonableness.  Touted as advocates for “criminal justice reform”, these groups tend to focus on law enforcement procedure and use of force.

They have identified police unions as the enemy because the union’s primary job is to defend you, the men and women of law enforcement. They have learned that officers are afforded due process through civil service laws and collective bargaining.  Therefore, the battlefield has become not only individual cases where these groups allege that officers have engaged in misconduct, but also the institutions and laws that protect those officers.  So they hate us for defending you.

It is kind of funny that the concept of due process is lost on the same folks who claim to support civil rights.

We have always had groups at the Texas Capitol, like the Texas ACLU. And in the past, we have had a pretty decent relationship with those groups. We very rarely agreed with them, but we were able to have civil conversations and sometimes come to an agreement.

But when we arrived at the Capitol in January, we found a very different world. Groups like “Austin Justice Coalition”, who had battled the Austin Police Association, over their contract, and “Just Liberty” led by well known “Grits for Breakfast” blogger and activist Scott Henson, were now permanent fixtures in the Capitol.  We found that outside interests were funding full-time activists like Chas Moore, Kathy Mitchell, and Chris Harris to push an anti-cop agenda that could be found in a litany of bills.

And if that wasn’t enough, we found that we were in the middle of a two-pronged attack by both the left and the right.  We had seen in past legislative sessions that a number of libertarian-leaning republicans had sided with liberal democrats on a number of issues that affected law enforcement.  The idea that law enforcement practices infringe on libertarian principles had shown up in a number of measures. One bill pushed in 2017 by a former legislator would have dismissed a resisting arrest charge if the original underlying charge was also dismissed.  The concept that not cooperating with law enforcement was an acceptable practice was being preached by so-called “law & order” republican members of the legislature and that was hard for us to believe.

What we did not know was the extent that some of these ideas had been accepted by those on the right.  We did not know, for example, that the Republican Party of Texas had adopted Platform Plank #92, “We call upon the Texas Legislature to end the practice of jailing individuals for offenses for which jail is not an allowable consequence under the law.”

We had known that the conservative think tank “Texas Public Policy Foundation” and their “Right on Crime” initiative had pushed legislation in the past to repeal criminal asset forfeiture, but now they were on board supporting other bills to limit the ability of law enforcement to protect the public.  The TPPF hired a former Illinois police officer, Randy Peterson, to be their “law enforcement authority” on these issues.  I guess you will say anything if the price is right.

We found that Republican pledges to be “Tough on Crime”, to “Support Law Enforcement”, or to “Back the Blue” were instead empty words when it came to many of the issues that were being pushed.

Even some of the constitutional carry gun advocates couldn’t resist the opportunity to “hate on the cops”.  CJ Grisham, one of the founders of Open Carry Texas, who has had numerous run-ins with law enforcement, including several arrests, took every opportunity he could to testify in support of bills that would limit law enforcement. And he also openly attacked CLEAT for opposing those bills.


The Battles!

So now that you know some of the players, let’s talk about the battles.

Time and space do not permit us to discuss every single fight we were in this session.  There were many. But if you want to get a sense of the magnitude, you can look at our bill tracking reports.

The Opposed Report lists all of the bills we were against and includes a summary or purpose of the bill. We have also listed additional information about the bill as it moved through the process.  If you click the link for a specific bill number from this report, you will be taken to the bill information on the Texas Legislature Online website where you can read the different versions of the bill, the bill analysis, and witness lists.

Before we discuss the two biggest battles, let me tell you about HB 521. This bill was filed by Rep. Harold Dutton (D-Houston) and it sort of set the tone for the whole session. I mentioned above about the “resisting arrest” fight we had in 2017. This bill was round two of that fight. It would have required officers to include the underlying charge for an arrest in the charging document for resisting arrest.  The bottom line is we were against it because it was a backdoor attempt to undermine the resisting arrest charge and provide a way to dismiss the case if the underlying charge was found to be invalid.  After I testified against the bill, Rep. Dutton began trolling me on Facebook.  He was not happy with our reasoning for opposing the bill, so he kept asking us to explain why.  We did and in fact I went by his office and met with his staff and went over every bill he had filed that we opposed.  Still, every time I posted something on Facebook, he would post under it the word “Waiting” as if that was supposed to intimidate us into doing something different on the issues we opposed.   This is the first time we can remember were a legislator openly used social media to stalk a lobbyist.  If not outright funny, it was interesting to say the least.


“Dead Suspect Loophole”

One of the first bills to be filed that we had a problem with was HB 147 by Rep. Joe Moody (D-El Paso).  The so-called “dead suspect loophole” bill was described as a fix to an unintended loophole in the Texas Public Information Act. The argument is that the loophole allows law enforcement to “hide” records related to law enforcement use of force incidents and in-custody deaths.  And Rep. Moody packed the hearing on the bill with grieving families who had lost a family member during an incident involving law enforcement.

The hearing on HB 147 was filled with very emotional testimony about the tragic loss of life and the families keyed on the fact that they could not get closure because they could not view the video of the incident involving their loved one.

The hearing can be viewed online here starts at the 4:53:30 mark in the video.

There was extreme pressure on those testifying to change their position from against the bill to “on” the bill; mainly because Rep. Moody said he would work with stakeholders to address their concerns.   CLEAT was the only statewide group to testify against the bill and we remained opposed when pressed about changing our position because we had not seen or agreed to language we could support.

CLEAT was opposed to the bill because of language that would have allowed for the release of information about “alleged misconduct”.  The bill would have also amended civil service law to allow information in department personnel files to be released.  Any information or video related to a use of force incident could be released to the media or activist groups prior to the investigation being completed. And we know this information would then be used to trash an officer on social media or in the press. You can’t ever put that genie back in the bottle, even if the investigation clears the officer.

We made it clear that we did not oppose language that would allow a family to view the video as long as it wasn’t released to the public while the investigation was still ongoing.  In fact, we later testified in support HB 4236 by Rep. Doc Anderson (R-Waco) that did just that. This bill passed and was signed by the Governor.

However, we could not support HB 147 the way it was written and we explained this to Rep Moody in person, in our testimony before the House committee and in writing via email.

At the end of the hearing, Rep. Moody said, “I hear and respect the concerns of some of our witnesses, which is why I have already committed to fixing the internal affairs concern. But he didn’t and instead accused us in the press of being dishonest about the bill. Let’s be clear, we were absolutely clear as to our position and we did not waiver.

The bill was heard on February 27th. We did not hear from Rep. Moody or his staff until March 25th when we were sent a copy of proposed language for HB 147 called a committee substitute.  Rep. Moody’s staff asked if we could support the language in the substitute.  We replied that we still had concerns about the “alleged misconduct” language and the amendment to section 149.089(g) of the civil service statute.

We asked if the intent of the legislation was to address the issues raised in the hearing about the family being able to see the video of an incident involving a loved one that was killed.  The response from Moody was “The goal of the bill is release to the public as a matter of public concern; how it affects families and litigation is secondary for us. We're certainly extremely sympathetic to families affected by the death of a loved one, but the bill isn't only about them. The primary purpose is release to the public, and the bill would do that.”  CLEAT Executive Director Charley Wilkison replied “Make sure Joe knows we remain opposed. There is no need to continue these conversations.  While you may pass it over our objections it won’t be because we have been tricked into laying off the ball and hoping for the best. Now that the real motive of the legislation is known we intend to do everything we can to stop the bill from becoming law.”

HB 147 Email Chain w/Rep. Moody over committee substitute for HB 147.

Shortly thereafter the House State Affairs voted out HB 147 and sent it to the Calendars Committee who sets the House floor agenda. We lobbied against HB 147 and were successful in keeping it from being set.

As the session started to wind down, more and more Senate Bills were sent to the House where they could be amended.  SB 944 was a bill by Senator Kirk Watson (D-Austin) and Rep. Giovanni Capriglione (R-South Lake).  The bill was an omnibus Public Information clean-up bill and was ripe for amendments.  We got word that Rep. Moody was going to try and stick HB 147 on as a floor amendment.  We met with Rep. Capriglione who agreed to oppose the amendment.

When the bill came to the floor, Rep. Moody offered the amendment and said “I want to be 100% transparent about support and opposition.  I have worked with most major police departments on compromise language, Houston, Dallas, Austin, and so on. Law enforcement there supports what is before you.  I want to be clear, CLEAT remains opposed.  For what policy reason, I don’t know because they refused to meet with me.  If I take what they said in public testimony in State Affairs they were concerned that the original bill opened the IA records to broadly. We addressed that in the committee substitute.”

Video of SB 944 on 2nd Reading in the Texas House with Moody Amendment

A number of things were false in this narrative. There were still police departments and other law enforcement associations against the bill.  Moody did not ask to meet with us again after we explained we were opposed in the March 27th e-mail.  And he did not address our concerns in the committee substitute or the floor amendment to SB 944.

Regardless, the vote to kill the amendment went against us 78 to 57.  Once SB 944 was amended, the bill had to return to the Senate.  At this point, we had to act fast.  We contacted the bill author and the Governor and expressed our objections.  We were told that by the Governor’s staff that if SB 944 with the Moody amendment, he would veto the bill, and based on this Senator Watson took the bill to conference committee.

In conference, there are 5 members of the House and 5 members of the Senate who meet to work out the differences in the bill. To make a long story short, we did what every other interest group does. We voiced our concerns and urged the conference committee to remove the Moody amendment.  And they did so.  Both houses adopted a conference committee report and passed the bill without the amendment.

This was a major victory for officers and will keep them from being smeared based on unsubstantiated allegations and misinformation.  At the same time, the families who lost a loved one in use of force incidents will be able to see the video and reach closure on these incidents by seeing the video under the provisions of HB 4236.  So the “dead suspect loophole” was closed to some extent, but just not as much as some would have liked to.

But of course, the media did not report the whole story.  But the following articles are worth reading, again from the perspective of others as to our involvement in this fight.

April 17, 2019 - KFOX (El Paso)
Loophole in Texas law related to police records could change after KFOX14 investigation

May 14, 2019 – KXAN (Austin)
Open records bill passes Texas House, added measure would eliminate dead suspect loophole

May 21, 2019 - Texas Observer
Ready, Set, File: Transparency Bills Passed by Legislature Could Open the Door to Once-Public Records

May 26, 2019 – KXAN (Austin)
‘Dead suspect loophole' fix stripped from open records bill

May 31, 2019 - REASON
Texas Police Union Kills Effort To Close State's 'Dead Suspect Loophole'


“Class C Arrests” 

In most legislative sessions we usually get into a bunch of small fights and one big one. Not this session, the “dead suspect loophole” fight was just one of two major battles. The second was the fight over bills that sought to prohibit the ability of officers to arrest for Class C, or “fine only” offenses.

This is the debate that will not end. Or you could call it Sandra Bland Round Two!  You have heard about Lazarus being raised from the dead, or the cat with 9 lives.  Well so lives the idea that Texas officers should not be able to arrest for an offense in which the penalty does not include jail time. One of the arguments is that the 4th amendment makes this unconstitutional. But the Supreme Court, in a Texas case, already decided that these arrests are lawful. See Atwater v. City of Lago Vista (2001)

We have fought this battle before. In 2001 and 2003 Governor Perry vetoed bills that limited arrest authority.

In 2017, when the Sandra Bland Act was being debated, CLEAT was the only organization to testify against provisions in that bill that would have limited police arrest authority. The Class C provision was ultimately removed before the bill passed.

And this year, we faced several more bills aimed at prohibiting or severely limiting Class C arrests.  The first was HB 482 by Rep. Senfronia Thompson (D-Houston). The bill had multiple co-authors from far left democrats and libertarian-leaning republicans.

And when it was heard in the House Homeland Security and Public Safety Committee on April 3rd, CLEAT was again the only statewide organization to testify against the bill and the Austin Police Association was the only local association to testify against it.

The hearing can be watched online here and starts at the 47:25 mark in the video.

Some of the most notable to testify for the bill were James Dickey, Chairman of the Republican Party of Texas, Kathy Mitchell with “Just Liberty”, Randy Peterson with the “Texas Public Policy Foundation/Right on Crime.

Chas Moore with “Austin Justice Coalition” testified and said, “I was asked by the Chairwoman’s office (Thompson) to stand down because we have been working diligently with TMPA and some of the sheriff’s. Clearly, we are not going to be able to please everybody, but we want to make sure that both the people are protected in their constitutional rights and our peace officers still have the tools they need to do their job the best they can.”

This, to say the least, bothered us. The thought that other law enforcement groups were negotiating to pass a bill that would basically hinder the ability of officers to protect the public was disturbing.

CJ Grisham with Open Carry Texas testified and said, “CLEAT motivated me to come up in support of this bill. I could not believe what I heard. This is not about taking a tool away from law enforcement; this is about taking away power from law enforcement.

This is about the ability to ruin your life if you don’t basically bow down to certain people.  And I am not talking broadly. There are officers out there that are on a power trip, and if they don’t like you, or you look at them the wrong way, or you look the wrong way, they will toss you in jail because of a busted tail light or they want to find some reason to get you. I would like to thank CLEAT for opposing this bill and motivating me to come up here and support it so vociferously.”

After the hearing, we were successful in keeping this bill from moving forward. And we have to give credit where credit is due. Both Rep. Tony Tinderholt (R-Arlington/Fort Worth) and Rep. Mike Lang (R-Granbury) were on this committee and support the men and women of law enforcement.  Lang is a retired Fort Worth police officer.  They helped tremendously in committee and later when the fight moved to the House floor.

Another bill that also dealt with Class C arrests was HB 2754 by Rep. James White (R-Hillster). So you can see this issue was not just supported by one party or the other. We were up against members of both parties who supported it for different reasons.

This bill was referred to the House Criminal Jurisprudence Committee and was heard on April 15, 2019.  Again, CLEAT was the only organization to testify against this bill.

The hearing can be watched online here at the 4:09:10 mark in the video.

And again, most of the same people who supported HB 482 also supported HB 2754.

But this time we didn’t have the backing of the committee to kill the bill and it was voted out 6-3 with language that required a cite and release policy be adopted by law enforcement agencies and limited arrests for Class C offenses unless the failure to arrest the offender creates a clear and immediate danger to the offender or the public; the failure to arrest the offender will allow a continued breach of the public peace; or the offender will not appear in court in accordance with the citation.

This bill was then scheduled for House floor debate and was considered at 10:30 pm on May 7, 2019. Though we had worked hard against the bill, the bill passed to third reading on a voice vote.  There is something to be said about bring a bill up late at night when everyone wants to go home.  But that did not keep us from trying again the next day because bills have to be considered on a third reading before they pass the House.

CLEAT met with Rep. White and asked him to consider adding an amendment that would ensure officers could continue to arrest for a Class C offense if they were not able to identify the person.  He agreed to do so and that amendment was adopted on May 8 and the bill passed the House.  That is when things went crazy.

Some Democrats on the floor didn’t understand the amendment. And they thought the amendment gave officers more authority to discriminate against someone; when in fact officers can arrest now if they can’t identify someone.  Under pressure, Rep. White agreed to bring the bill back up and remove the amendment.  The debate at this point went off the rails and because of the confusion. The only way to get a good idea of happened is to watch it online.

Video of House Floor Debate HB 2754 on 5/08/19:
(Bill first brought up at 1:51:07.  Brought back up at 8:43:57 in the video.)

The bill ultimately was voted down on a vote of 55 to 88.  Game over, right?

Not so fast.  We learned that another attempt was going to be made to reconsider the bill on the last day that the House could consider House bills.  This happened late in the day on Friday and many members had left.  In order to bring the bill back up, two-thirds of the members voting had to vote for the motion.

Rep. Garnet Coleman (D-Houston), the author of the Sandra Bland Act in 2017, made the motion and both Rep. Lang and Tinderholt spoke against it.  When the dust had cleared, the motion failed by 2 votes.

5/10/19: Video of House Debate to Reconsider Vote in Which HB 2754 Failed to Pass

Again, end of story.  Oh hell no!

With less than a week left in the session, Rep. Joe Moody decided he was going to revive the Class C arrest issue.  He was the House sponsor to SB 815 that dealt with records of criminal proceedings.  With little warning, Rep. Moody offered an amendment to SB 815 on the House floor that wouldn’t prohibit arrests for Class C offenses, but it would require officers to document in a record or report that the arrest was necessary because of “a clear and present danger to public safety”.

If the arrest didn’t meet the criteria, judges would have to dismiss this charge.

We felt that this amendment, if made into law, would have all kinds of unintended consequences, including legal liability for officers making these arrests.

So when the bill came up the next day on third reading, we again had lobbied a number of members to oppose it. Rep. Phil King (R-Weatherford) spoke against the bill. Rep. King is also a former Fort Worth police officer.  Rep. Lang also engaged in the debate against the bill as amended.  After the debate, the bill failed to pass on a tie vote 71/71.

5/21/19: Video of SB 815 House Floor Debate.

Again, we thought we it was over. But Lazarus rose again.  Late that night, Rep. Moody was able to try again.  The powerful chairman of the House Calendars Committee, Rep. Four Price (R-Amarillo) made a motion to reconsider SB 815.  And the bill was brought up again.  Moody offered more amendments to address some of the concerns about why arrests are needed that Rep. King had brought up earlier in the day.  When that amendment was added, the bill passed 81/52 with the Speaker of the House clapping from the podium.

5/21/19: Video of SB 815 on Final Passage

So what next?  Well just like with SB 944, SB 815 had to go back to the Senate. The Senate could concur with the House amendments or go to conference committee. We went to work. We contacted every Senator and explained our objections to the Moody amendment.  We again reached out to the Governor.  We put out a press release explaining our objections.

We never misrepresented the amendment but some took a few statements quoted in our press release as being misleading.  We agree to disagree.

If we have a different opinion on an issue it doesn’t mean we are lying just because you don’t like our opinion.  The Chairman of the House Democratic caucus, Rep. Chris Turner (D-Arlington), contacted us and asked for a meeting. We were told that he wanted to meet with us and a “few colleagues”. He also said he would send us a formal letter requesting the meeting. This letter never came.  We smelled a trap. We felt that if we attended this meeting, we were going to be ambushed. So we declined the meeting.  And our assessment turned out to be true because they used this against us on the House floor.

To get a clear understanding of how engaged we were in this fight and how we never wavered from our position in representing the best interests of our members, you only have to watch and read what others have said about this issue, including the comments made by Rep. Moody, Rep. Turner, and Rep. Dutton when the conference committee report for SB 815 was discussed on the House floor.

5/26/19: Video of House Debate on SB 815 conference committee report.

Articles:

May 10, 2019 - Texas Tribune
Advocates say a Texas House bill could prevent arrests like Sandra Bland's, but multiple attempts to pass it failed

May 15, 2019 - Texas Observer
With a Bizarre Assist by Democrats, Police Groups Kill Bill to Limit Arrests for Fine-Only Offenses

May 22, 2019 - Texas Monthly
Seventh Time’s the Charm: Despite Repeated Bungling, the Lege Manages to Pass an Update to the Sandra Bland Act

May 23, 2019 - Right on Crime
Unions Alarmingly Misrepresent SB 815

May 26, 2019 - Texas Tribune
A measure to limit arrests for non-jailable offenses passed the House after a great struggle. It still died.

May 29, 2019 - Texas Monthly
How Texas’ Powerful Police Union Went to War Against Criminal Justice Reform

May 31, 2019 - Right On Crime
Is Pro-Liberty Really Anti-Police?


The Path Forward!

If you don’t know it, the crash of the gavel ending the legislative session was just the first gunshot in the next battle.  These issues are not going to fade away. The war on cops will continue.

We are committed to staying in the fight. We will do our best to represent our member’s interests.  We do have to be reasonable.  But that doesn’t mean we have to accept proposals that we don’t believe are reasonable.   It was once said, they can pass it over our objections, it doesn’t mean we have to like it.

What can you do to help? Get active with your local association. Participate in the political process.  Help educate people in your political party.  Did you know the Republican Party of Texas did not even reach out to law enforcement to find out the other side of the issue before they adopted a plank against Class C arrests.

Most importantly, you will be hearing about the importance of putting your money where your mouth is.  Yes, we need you to contribute to CLEAT PAC. Having money in PAC allows us to influence the political process in the best interests of our members.

Donate to CLEAT PAC Today!

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