Texas bill to increase transparency in public records law left in limbo despite passing Legislature

This article is co-published with ProPublica, a nonprofit newsroom that investigates abuses of power. Sign up for ProPublica’s Big Story newsletter to receive stories like this one in your inbox as soon as they are published.

Also, sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.

Texas lawmakers passed more than 1,300 bills before the end of this year’s contentious legislative session, quickly sending them to the governor for consideration.

All of them but one.

House Bill 30, a priority of state Democratic Rep. Joe Moody to increase transparency in Texas’ public records law, still hasn’t been signed in the Senate, leaving it in legislative limbo and raising concerns about the fate of the measure, which was lauded by First Amendment advocates as a major victory.

If signed by the governor, the bill would close a long-standing loophole in state law that allows government agencies to withhold or heavily redact law enforcement records if a person has not been convicted or has received probation. The law was designed to protect people who are accused of unsubstantiated criminal activity, but some government agencies have instead used it to withhold information in situations where suspects die in police custody or are killed by law enforcement.

Agencies have also used what is known as the “dead suspect loophole” to withhold records in cases such as that of Logan Castello, an Army private first class, who died by suicide in his Central Texas apartment in November 2019. Last month, ProPublica and The Texas Tribune highlighted his parents’ yearslong fight for information about his death.

Both the state House and the Senate passed Moody’s bill after hammering out a compromise in the waning days of the session, which ended Monday. The measure received the necessary signatures in the state House, including that of Speaker Dade Phelan, who publicly voiced support for the bill last year after the Uvalde massacre raised concerns that government entities might use the loophole to withhold information about the dead shooter. (They have cited other reasons for keeping information from the public.) The bill was then sent to the Senate so that Lt. Gov. Dan Patrick could sign off.

That hasn’t happened.

Because the bill hasn’t been signed, it hasn’t been sent to the governor to either veto or approve.

The Texas Constitution requires the presiding officer of each house to sign all bills and joint resolutions.

“It is a mandatory provision,” said Randy Erben, an adjunct professor at the University of Texas at Austin School of Law who previously was Gov. Greg Abbott’s legislative director. “And the bill is invalid if it’s not signed by both presiding officers.”

Neither Patrick’s nor Abbott’s offices responded to a request for comment. Moody also did not respond to a request for comment. The bizarre predicament was first reported by the Austin TV station KXAN.

Asked whether the bill ultimately needs the lieutenant governor’s signature to have a chance to become law, Phelan’s communications director, Cait Wittman, said it was not clear.

“Because we are unaware of any similar situation in modern history, this is an open legal question,” she said.

Missing bill

Moody was elated when he finally got the bill over the finish line last month, calling it possibly the most consequential legislation he’d ever sent to the governor.

“Ultimately, the way this is written now, it cuts to the core of how people were abusing this exception to the Public Information Act,” Moody told ProPublica and the Tribune. “So if anyone’s going to hide information, now, they’re going to have to work a lot harder and find a new way to do it.”

The Senate and the House adopted the final version of Moody’s bill on May 28. The last step in both chambers was for Phelan and Patrick to sign it by the following day, which is considered a pro forma step after legislative bodies approve bills even if the officials personally oppose them.

Video from the House floor on Monday, the last day of the regular session, shows a clerk reading off enrolled bills to be signed that day, including HB 30.

In the video, the reading clerk can be seen handing a stack of bills that includes HB 30 to Mark Cervantes, the assistant chief clerk in the House. He told ProPublica and the Tribune he then handed the bills to staff from the Texas Legislative Council. Bills are printed out, and legislative council staffers are responsible for distributing those documents.

After the reading in the House, council staffers delivered a stack of bills that should have included Moody’s to the Senate.

But a video from the Senate on the same day shows the bill was never read.

Legislative council staffers discovered Moody’s bill was missing Tuesday morning, the day after the session ended.

KXAN reported Friday that a Senate journal clerk said the bill was never delivered to the chamber and that “it seems” the bill was left in the possession of the House.

A list of House measures ProPublica and the Tribune obtained through an open records request shows HB 30 among a batch of bills delivered to the Senate that day. Wittman, Phelan’s communications director, said it is “inconceivable” the bill went missing before it was delivered to the Senate because every other bill in the same batch was signed and returned to the House.

Still in limbo

On Tuesday, the chief clerk of the House sent a certified duplicate of the bill to Patsy Spaw, the secretary of the senate. Spaw signed for the copy, acknowledging she had received it, according to documents ProPublica and the Tribune received through an open records request.

Patrick did not sign the bill on Friday, when the Senate briefly convened for a special session.

Phelan’s office would not speculate on what happened to the bill or why the lieutenant governor still has not signed the measure.

“The Texas House and Senate voted overwhelmingly in support of House Bill 30, one of Speaker Phelan’s many legislative priorities, and on May 29th, he was proud to fulfill his constitutional obligation of signing this legislation in the presence of the House,” read a statement his communications director provided to the news organizations. “There are several administrative tasks that need to take place after a bill’s passage before it can be signed into law, and House Bill 30 has cleared all of those necessary procedures in the House.”

The bill’s disappearance comes amid a blistering war of words between Phelan, Patrick and Abbott, as the three Republicans have publicly squabbled over their dueling property tax reform proposals. Abbott publicly sided with Phelan’s House proposal this week.

It is unclear if any of the back-and-forth affected the bill’s path to the governor. But Erben said he could not identify any part of state law that addresses what would happen if Patrick declines to sign a measure.

“It would be a very interesting case,” Erben said. “Let’s just put it that way.”

Disclosure: University of Texas at Austin has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

Go behind the headlines with newly announced speakers at the 2023 Texas Tribune Festival, in downtown Austin from Sept. 21-23. Join them to get their take on what’s next for Texas and the nation.