Austin Police Oversight Lawsuit on Hold in Appeals Court

Central to the argument: whether the Office of Police Oversight can access all misconduct records (Photo by John Anderson)

The lawsuit that will determine the future of the voter-approved Austin Police Oversight Act is on pause as the 3rd Court of Appeals considers if the Austin Police Association (APA) can present arguments in the suit.

The pause began April 4 when the court granted an emergency request from the police association to delay the first major hearing in the suit, which was scheduled for April 9 in Travis County’s 201st District Court. Before that, back-and-forth motions filed this spring debated whether the police union could be a party in the lawsuit. In February, the association filed an intervention, which added them as a formal party to the suit. Then, plaintiff Equity Action (the justice advocacy organization that wrote the Austin Police Oversight Act), moved to have the union removed. District Judge Maria Cantú Hexsel agreed, and ordered it so, April 1. But two days later, the association filed their emergency request with the appeals court to be added back to the suit, prompting justices to pause proceedings while the appeals court considers.

At the heart of the dispute is, once again, the “G file.” That’s the confidential portion of a police officer’s personnel file that includes records relating to misconduct investigations that did not result in formal disciplinary action (including allegations that were substantiated but not disciplined). The Oversight Act prohibits the police department from maintaining a G file and ensures that the Office of Police Oversight (OPO) – the civilian agency tasked with overseeing the Austin Police Department – can access those investigative records.

But city leadership has allowed APD to continue maintaining a G file since the Oversight Act became law nearly one year ago – hence EA’s lawsuit, filed in December against interim City Manager Jesús Garza, interim Police Chief Robin Henderson, and OPO Director Gail McCant, the three city leaders responsible for ensuring the law is fully enforced. Equity Action has argued that if they win the case (i.e., a court orders the city to fully comply with the Oversight Act, including elimination of the G file), the police association will not be harmed, so they don’t need to be party to the suit. EA also points out that hundreds of police departments and sheriff’s offices across the state do not maintain G files and their law enforcement officials are not subjected to the kind of defamation the APA speculates would become the norm in Austin.

The police union strongly disagrees, arguing that full enactment of the Oversight Act – specifically, elimination of the G file – would cause the association great harm. Eric Opiela, APA attorney and former executive director of the Republican Party of Texas, homed in on the union’s fear that without the G file, the records contained within it would become public. That is possible, but the Texas Public Information Act includes dozens of exceptions governments can cite to deny public access to records.

Equity Action believes that the police association’s court maneuvers are really about delaying a potential trial court ruling that might force the city to kill the G file. (Before the latest appeal, the union filed discovery requests and other motions in the suit that delayed proceedings.) If a court orders the G file finished, the APA would lose a huge bargaining chip in their ongoing negotiations with the city over a long-term labor contract – a fact the association acknowledged in their initial petition to the appeals court.

“If officers know that the city will release defamatory and unfounded claims against them to the public,” the APA wrote, describing a remote, but worst-case-scenario situation following G file elimination, “no doubt they will demand higher compensation for that risk – or simply choose not to work for the City and seek employment in another Department.”