Outside View

Texas’ approach to regulating law enforcement is toothless.

A doctor who misses a child support payment can have a medical license temporarily suspended. An attorney who fails to keep a client reasonably informed about the status of a case can have his or her law license suspended for three years. Many positions of public trust in Texas carry high ethical standards.

There are exceptions, of course.

While a police officer might lose his job after attempting to feed a homeless man a sandwich filled with dog feces, he can — and did — simply get another job protecting and serving in a small town 30 miles away.

Something is very wrong with this picture. When a police officer’s behavior is so abhorrent that both his superiors and independent arbitrators agree his firing is justified, he should never be entrusted with a badge again. Yet the Texas Commission on Law Enforcement, the state agency responsible for licensing police officers, has little to no authority to remove officers who demonstrate gross incompetence. As a result, two state audits from the watchdog Sunset Advisory Commission in the past three years have drawn identical conclusions: Texas’ approach to regulating law enforcement is “toothless,” outdated and inconsistent. That means the responsibility for disciplining officers frequently falls on an individual agency.

Take San Antonio officer Matthew Luckhurst, the cop who gave the homeless man the feces sandwich in 2016. It took four years for the police department to actually get rid of him. Luckhurst was initially suspended for only 30 days without pay for the sandwich incident. After he was reinstated, he and another policeman played a grotesque prank on a female officer who made an outlandish request that the women’s bathroom be kept clean. Luckhurst defecated in the women’s toilet without flushing, then spread “a brown substance” on the toilet seat.

Luckhurst’s scatological fixation eventually got him fired, but he was reinstated in 2019 after an arbitrator concluded the department had missed the legal window to discipline him. He was allowed to remain on the force until June 2020, when a different arbitrator finally agreed the police department was justified in dismissing him. A mere five months later, Luckhurst was hired by the Floresville Police Department outside of San Antonio as a reserve officer. After Hearst Newspapers’ Eric Dexheimer reported that Luckhurst was rehired in Floresville, he was subsequently fired.

We applaud that result and Dexheimer’s reporting. But what about all the other examples the public never finds out about?

Luckhurst is what’s known as a “wandering officer” — a peace officer fired for misconduct who seeks employment at another law enforcement agency. It’s a problem that’s not unique to Texas, though our state has had several high-profile instances of officers given second chances, at times leading to calamitous results.

Christopher Carter, a former University of the Incarnate Word police officer who was sued for wrongful death after fatally shooting a 23-year-old student six times at a traffic stop, has held 13 different law enforcement jobs, some of which he had been terminated from. Former Uvalde police chief Pete Arredondo, who presided over the disastrous response to the school shooting at Robb Elementary in May when hundreds of officers waited more than an hour before confronting the shooter, was previously demoted from a leadership position at the Webb County Sheriff’s Office. His superior, Sheriff Martin Cuellar, told the San Antonio Express-News after the shooting that if Uvalde officials had asked him about Arredondo, he would have told them he wasn’t “capable of running even a small department.”

Data compiled recently by the nonprofit Texas 2036 paints a stark picture of how many dishonorably discharged peace officers were rehired elsewhere. Collectively, 566 law enforcement agencies in Texas have rehired 1,401 of these officers over the past decade.

In Harris County, both the Constable Precinct 4 office, currently led by Mark Herman, and the county sheriff’s office, currently led by Ed Gonzalez, are in the top 10. Precinct 4 has rehired 17 dishonorably discharged officers — the second-highest number in the state — while the sheriff’s office has rehired 11.

At the root of this problem is the “F-5” form, a document that a chief administrator of a law enforcement agency is required to fill out and send to TCOLE after an officer is terminated. In theory, these forms are supposed to notify a future law enforcement employer whether an officer was dishonorably or honorably discharged. In practice, these reductive designations often obscure crucial details about why an officer might be fired. Reasons for a dishonorable discharge can range from simple insubordination — such as talking back to a superior officer — or something far more serious.

Officers who receive a dishonorable discharge can appeal that designation to TCOLE and receive an administrative hearing where a judge reviews the case. As Texas 2036 notes in its report on TCOLE, law enforcement agencies frequently decline to participate in these appeals, “resulting in default victories for the officers seeking an upgrade in their discharge status.”

And because Texas’ police accountability system is so decentralized, whether a fired officer can keep a peace officer license depends largely on the standards of the individual agencies that hired them. The law enforcement commission can suspend or strip an officer’s license only for certain criminal convictions.

Texas has an enormous number of law enforcement agencies — 2,800 statewide, more than California, New York, Florida and Illinois combined. The state has so many specialized police forces — including for water districts, the pharmacy board, and the state Lottery and Racing commissions — that even the Texas Board of Podiatric Examiners unsuccessfully pushed for one.

“TCOLE and the state Legislature have just sat there on their duff and have made it easier for political subdivisions to create second- and third-tier law enforcement,” Charley Wilkison, executive director of the Combined Law Enforcement Associations of Texas, told the editorial board.

The Sunset Advisory Commission agrees. In its audit of TCOLE released last month, it noted that the agency has never denied registration to a new law enforcement agency and lacks the authority to do so. And unlike other state occupational licensing and regulatory programs, TCOLE has virtually no role in setting or enforcing professional conduct standards. TCOLE’s authority to permanently revoke a peace officer’s license is mostly confined to cases of officers convicted of felony or certain misdemeanors, or being placed on community supervision, according to state administrative code. Whereas the Texas Medical Board and the State Bar of Texas must uphold statewide standards of conduct for doctors and attorneys no matter where they work in the state.

Despite these findings, the Sunset commission endorsed continuing the law enforcement commission for another two years, while urging the state to establish a blue ribbon panel to “evaluate the regulation of law enforcement in Texas and make recommendations for needed changes.”

We believe the state should go a step further and adopt some of the recommendations offered by Texas 2036, including pushing the Legislature to re-define the discharge categories for terminated officers to be “neutral, fact-based, and descriptive,” and make them publicly available. Lawmakers could also mimic states such as California and New Jersey, and pass a bill that gives the Texas Commission on Law Enforcement broader authority to decertify peace officers who commit acts of misconduct. A good place to start would be giving a proper hearing to a bill proposed by state Sen. Juan Hinojosa, D-McAllen, which would direct TCOLE to make policies for investigating licensed officers for disciplinary action and give them the power to temporarily suspend a license on an emergency basis for “improper or unlawful acts.”

A state as large as Texas should not have a patchwork of disciplinary standards to oversee public servants empowered to take people’s liberty and even their lives. It serves nobody well, not the officers who need training to do a tough, dangerous job, and certainly not the public they are sworn to protect.

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