Austin Law Department Argues City Council Can’t Stop Austin Police from Keeping Secret Files

The city has for months refused to implement a key aspect of the Austin Police Oversight Act that would give a limited number of city staff outside of the police department direct access to some officer misconduct records.

In a court date last week, the City of Austin expressed new legal reasoning to justify maintaining a confidential “G file” – arguments that, by the city’s own admission, are untested in court and unsupported by existing case law.

According to statements made Thursday, Oct. 19, by Assistant City Attorney Chris Coppola in open court, it is the city’s view that no one but Austin’s police chief has the authority to alter an Austin Police Department policy that allows the department to maintain confidential personnel records for officers that are only accessible by APD in what is known as a “G file” – not City Council, the city manager, nor even Austin voters. The APOA, approved overwhelmingly by voters in May, prohibits the city from maintaining the secrecy of these records, so that they could be accessed by other city departments – like Human Resources or the Office of Police Oversight – and subject to release through the Texas Public Information Act (TPIA).

The new arguments, unveiled at a hearing in the murder trial involving Austin Police Officer Christopher Taylor, represent a shift in the city’s legal opposition to the APOA. The argument hinges on a Supreme Court of Texas opinion declaring that when state law and local ordinance are in conflict, the state law supersedes the local ordinances, and on a narrow reading of Chapter 143.089(g) of the Local Government Code – the state law that grants cities the authority to establish a G file. That law is in conflict, Coppola argued, with the APOA provision that prohibits the city from maintaining a G file.

In a surprising admission, the city’s Law Department now contends that creation of the G file is itself optional, because the statute allowing it uses the word may when outlining authority around creating a G file. “A fire or police department may maintain a [G file] on a fire fighter or police officer employed by the department for the department's use,” is how the subsection of the law in question begins. Coppola also pointed to Chapter 311 of the Code Construction Act, which offers guidance on various terms found in state law, one of which is that when legislation uses “may” it “creates discretionary authority or grants permission or a power.” But, Coppola argued, that discretionary authority is granted only to a city’s police department – not to the city itself.

“It is the city’s position that 143.089(g) gives the police department the power and its own discretionary authority to keep the files,” Coppola continued. “Whatever we all think about whether this is a good state law or not, the City Council doesn’t have the authority to revoke that power…by city ordinance."

Coppola acknowledged that there has been no litigation around the city’s legal theory that the police chief has sole authority over the discretionary nature over keeping these records completely confidential. Bill Aleshire, a former Travis County Judge who has since often aligned with Save Austin Now in criticizing City Council action, agrees with the theory put forth by Coppola.

“I don’t think this is a choice the Austin City Council has, whether or not to maintain the G file,” Aleshire told us. “I don’t see a role for them the way the decision structure is set out in [the state law]. It’s up to the [police] department, not even the city manager. The manager can have an opinion on policy and advise the chief, but any management decisions on the operation of the department is up to the chief.”

If borne out, this theory would have striking implications for who holds power within local government. Unlike county sheriffs, who are elected officials and thus enjoy independent authority granted to them by the Texas Constitution, municipal police chiefs are city employees who are generally bound by policies and ordinances enacted by municipal government.

Under Austin’s council-manager form of government, City Council sets policy and the city manager implements it. Police department policy falls within that purview; the police chief is subordinate to the city manager, who is subordinate to the 11 members of City Council, who, of course, are elected by Austin voters. In essence, then, the city is arguing that, in this specific policy matter, the people of Austin do not have authority over their police chief.

When the Chronicle asked by email, Oct. 20, about Coppola’s legal argument, the city’s provided response appears to have again shifted their position on the G file. “If APD does keep the files,” a city spokesperson told us, “then they need to be confidential. APD can’t simply keep the files and then opt out of the confidentiality.” The response affirms the discretionary nature of the G file, while introducing a new argument suggesting that G file records can only exist if they are kept confidential.

Kathy Mitchell, a senior advisor to Equity Action – the group that wrote the APOA – disagrees. “The voters have approved a policy of greater transparency and one that aligns Austin with most other law enforcement agencies in the state,” Mitchell continued. “Nothing in the law prohibits the city from doing this.”

Coppola also offered a different legal theory at the Taylor hearing for why the APOA’s G file prohibition cannot be implemented. Doing so, the attorney argued, would essentially sever just one aspect of Chapter 143 which “is not possible under state law.” The only way to do that would be to completely repeal Chapter 143 altogether. The city declined to offer any case law supporting this reasoning.

The hearing where Coppola offered these arguments was over a motion filed by prosecutors asking District Judge Dayna Blazey, who is presiding over the Taylor trial, to reconsider a ruling she issued in May denying prosecutors access to Taylor’s G file, which was subpoenaed in November of 2022. Blazey’s May ruling was in response to a motion filed by the city to quash the state’s subpoena; ultimately, Blazey ruled that she and the defense would have access to the G file, but not prosecutors.

In an Oct. 20 order, Blazey denied the state’s request.