The End of the “Dead Suspect Loophole” and Other TPIA Changes
During the last legislative session, changes were made to Chapter 552 of the Texas Local Government Code which altered important government transparency provisions related to the release of information under the Texas Public Information Act (TPIA).
Public Information Officers (PIOs) need to be aware of these changes which impact: 1) the release of information in the event a suspect dies without being convicted, 2) the calculation of important response deadlines, and 3) the requirement to submit requests for attorney general opinions electronically. These bills included other changes not considered here.
First, the changes to § 552.108 made by HB 30 impact access to certain law enforcement, corrections, and prosecutorial records under the TPIA. It revises an exemption that came to be known as the “dead suspect loophole.” The exception was originally intended to protect the privacy of suspects that hadn’t had their day in court and gone through the court process. In effect, though, lawmakers alleged the loophole resulted in the withholding of records and details about certain deaths, particularly those where a suspect died in police custody or was killed by a law enforcement officer. Now, under the new language in the statute, such records related to a deceased suspect cannot be withheld just because the suspect has died.
Second, HB 3033 amended Sec. 552.0031 to provide more consistency and predictability to TPIA response times. Meeting TPIA timelines is critical, yet prior to HB 3033, the TPIA did not formally define “business day” and it was generally interpreted to mean any days the governmental entity was not open to the public for business. As of September 1, 2023, we now know the term “business day” does NOT include:
- Weekends (Saturday and Sunday)
- National holidays (New Year’s Day, Martin Luther King, Jr. Day, President’s Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, and Christmas Day)
- State holidays (Confederate Heroes Day, Texas Independence Day, San Jacinto Day, Texas Emancipation Day, Lyndon B. Johnson Day, the Friday after Thanksgiving, and the 24th and 26th of December)
- Optional holidays of Rosh Hashanah, Yom Kippur, or Good Friday (but this is only if the public information officer of the governmental body observes the holiday(s))
- The Friday or Monday before or after a national or state holiday if the holiday falls on the weekend and the governmental body observes the holiday on that Friday or Monday
- Up to an additional 10 designated nonbusiness days per calendar year on which administrative offices are closed or operating with minimum staffing.
This means these days do not need to be counted when calculating TPIA response deadlines. Whenever a governmental entity requests an opinion from the attorney general to determine whether certain information can be withheld, it receives a response from the AG. The entity is then required to notify the requestor of the information that will be released or withheld pursuant to that AG opinion, give the requestor of cost estimate for the release, release the information, and inform the requestor if the governmental entity will legally challenge the attorney general’s decision.
Prior to HB 3033, all the above steps had to be taken within a reasonable time after the issuance of the AG opinion. As of September 1, 2023, now within a reasonable time is defined as “not later than the 30th day after the attorney general opinion is released.”
Finally, every governmental entity must request attorney general opinions electronically unless they have fewer than 16 (sixteen) employees, are in a county with a population of less than 150,000, if electronic filing is impractical or impossible due to the volume or format of the responsive information, or if the request is hand-delivered to the attorney general’s office.
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice.
