Texas Racial Profiling laws in the George Floyd era.

Texas has had a law prohibiting racial profiling by police for twenty years, and in my personal and professional opinion, agencies have done well in their efforts to hold themselves accountable to the citizens they serve in stopping the tactic of racial profiling.

Having said that, there is one area that many, or most, agencies have been deficient in; not in the prohibition of racial profiling, but in the reporting their traffic contacts to the State. That being to the State agency that regulates Texas law enforcement agencies is the Texas Commission on Law Enforcement, or TCOLE

Our reporting laws have two essential requirements, and the second requirement, which was amended in 2009, is where the deficiencies I am speaking of lie.

The two part law has one clearly understood and universally followed section, that is the requirement that every law enforcement agency that makes traffic stops, even one, must compile data on all stops, as it relates to the race of the driver. The required information also must show incidents of searches and arrests of drivers.

That part of the law is usually met without issue, however the second requirement is for a “comparative analysis” of that racial profiling data collected, also be forwarded to TCOLE, that analysis being on a secondary form.

When the law came into effect in 2001, that second report was only required to be sent to the agencies governing body, and not to TCOLE. In 2009, the law was amended to require that TCOLE would also be sent the analysis form – here is where the wheels fell off.

Something went wrong, somewhere along the way, and up until 2021, TCOLE has only mandated the first report be submitted to them, although many departments have been sending in the comprehensive review in accordance with the statute, without the TCOLE mandate that it be sent.

To completely satisfy the reporting requirements, an agency must do two things: submit the data it amassed related to the traffic stops, and enter it directly to TCOLE, via an on-line reporting system. They must also upload a separate PDF “comparative analysis” document containing a statistical analysis of its motor vehicle stops compared to the gender and ethnic population of the agency’s reporting area, and there must be a signed declaration supporting it.

Texas Code of Criminal Procedure details what a comparative analysis does:

1. Compare number of traffic stops to races stopped.

2. Examine outcome of stops and searches to race.

3. Evaluate and compare number of searches by race and whether evidence/contraband found.

TCOLE has revised its 2020 reporting form, now requiring signed affirmation that “statutory data audit requirements.” These are due by March.

In this current atmosphere, I foresee that critics of law Enforcement, and civil activists will not be satisfied with the newly enforced mandate, as many will say it’s still not enough to determine if an agency, or individual officers, use racial profiling as a tactic.

Some states have started releasing detailed data on every single stop they make, to appease critics, and some say Texas laws need to be changed to reflect that. That would require data on every single traffic stop be decimated to the public, so they, and anyone who chooses, be the evaluator of agencies and individual officers.

North Carolina, for example, already releases records of every traffic stop made in the state.

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