Texas

Overview

Texas is one of the most aggressive prosecuting states in the nation, yet remains deeply inconsistent in enforcing its constitutional obligations under Brady and Giglio. Despite landmark state-level decisions and some county-level innovations, Texas does not require prosecutors to maintain Giglio or “Do Not Call” lists, nor does it obligate law enforcement agencies to proactively report misconduct to prosecutors. The Texas Public Information Act offers only limited access to personnel records, and key disciplinary files are often withheld under broad exemptions. With 254 counties, hundreds of independent police agencies, and over 4,000 law enforcement entities statewide, the absence of a uniform disclosure framework means that truth in the courtroom is often obstructed by bureaucracy, local politics, or willful blindness. While large counties such as Harris, Dallas, and Travis have made strides toward transparency, much of the state remains governed by silence.

Brief Description of Legal Landscape

Criminal prosecutions in Texas are conducted by elected District Attorneys in each of the 254 counties. The Texas Attorney General has limited prosecutorial authority but can assist in special cases and appeals.

Disclosure responsibilities are defined by:

• Texas Code of Criminal Procedure Art. 39.14 (Michael Morton Act): Requires the state to disclose exculpatory, impeachment, and mitigating evidence to the defense, without the need for a formal request.

• Texas Disciplinary Rules of Professional Conduct Rule 3.09(d): Obligates prosecutors to disclose any information that tends to negate guilt or reduce punishment.

• Texas Government Code § 552.108 (Texas Public Information Act): Exempts law enforcement internal affairs records and personnel files from public disclosure if they relate to ongoing investigations or law enforcement operations.

Police certification and oversight fall under the Texas Commission on Law Enforcement (TCOLE), which may revoke or suspend officer licenses but does not operate a public or prosecutor-accessible Giglio database.

Historical Context

Texas has been at the center of some of the most egregious wrongful convictions in U.S. history—many of them directly attributable to Brady violations. The case of Michael Morton, wrongfully convicted in 1987 and exonerated in 2011, led to sweeping reforms in discovery law through the Michael Morton Act (2013). However, while the Act expanded defense access to exculpatory evidence, it did not create an enforcement mechanism for police-prosecutor communication or mandate the tracking of Giglio-impairing misconduct.

In 2017, TCOLE admitted it could not say how many officers in Texas had been decertified for misconduct. Meanwhile, multiple investigations revealed that officers fired or disciplined in one department were often hired in another, with no statewide system alerting prosecutors or defense attorneys to their credibility issues. These “wandering officers” pose an ongoing threat to fair trials.

High-profile counties such as Travis (Austin), Harris (Houston), and Dallas have taken steps to identify and limit the testimony of officers with sustained misconduct records. However, these practices are not standardized, and most counties maintain no formal process for disclosure of Giglio material.

Legal Framework and Precedents

Constitutional Provisions and State Statutes

Texas’s Constitution guarantees due process under Article I, Section 19 and confrontation rights under Article I, Section 10, aligning with federal standards.

Relevant statutes include:

• Tex. Code Crim. Proc. Art. 39.14(h): Requires the disclosure of “any exculpatory, impeaching, or mitigating evidence,” regardless of whether it is admissible at trial.

• Tex. Disciplinary Rules of Prof. Conduct 3.09(d): Mirrors Brady obligations for prosecutors.

• Tex. Gov’t Code § 552.108 and § 552.101: Exempt internal affairs records from public release if disclosure would interfere with law enforcement or is considered confidential by law.

Texas law does not require police departments to notify prosecutors of internal affairs findings, nor does it require prosecutors to maintain any internal database of Giglio-impacted officers.

Relevant Case Law and Judicial Interpretations

• Ex parte Chaney, 563 S.W.3d 239 (Tex. Crim. App. 2018): Reinforced that prosecutors have a duty to disclose Brady material and that materiality is evaluated under the totality of the circumstances.

• State v. Martinez, 569 S.W.3d 621 (Tex. Crim. App. 2019): Clarified that Art. 39.14 covers impeachment evidence and requires active disclosure.

• Watkins v. State, 619 S.W.3d 265 (Tex. Crim. App. 2021): Emphasized the broad reach of the Michael Morton Act, but also confirmed that law enforcement agencies are not compelled to maintain or provide impeachment files unless requested by the prosecutor.

Texas courts have recognized strong disclosure obligations but consistently deferred to prosecutorial discretion and placed no systemic requirements on police agencies.

Implementation and Enforcement

Law Enforcement Policies and Training

Texas law enforcement agencies are not legally obligated to report sustained findings of misconduct to local District Attorneys. Many departments conduct internal investigations confidentially, with findings of dishonesty, excessive force, or constitutional violations kept within the agency or even purged under civil service protections.

TCOLE can decertify officers, but these actions are often delayed, contested, and not linked to prosecutors’ Giglio responsibilities. The Commission does not maintain a searchable database that alerts prosecutors to decertified or disciplined officers, nor does it integrate with case management systems.

There is no mandated Giglio training in police academies, and even the Texas Commission on Law Enforcement’s Model Policies lack specific instruction on Brady/Giglio standards.

Some large counties have taken independent action:

• Travis County (Austin): Maintains an internal Giglio list and shares it with public defenders.

• Harris County (Houston): Launched the Conviction Integrity Unit and built a “Disclosure Compliance Policy,” though not all departments comply.

• Dallas County: The DA’s Office maintains a confidential list of officers with sustained credibility concerns.

However, the majority of Texas’s 254 counties—particularly in rural areas—lack such policies entirely.

Oversight Mechanisms and Accountability Structures

There is no statewide oversight body that tracks Brady/Giglio compliance, maintains a centralized database of officer misconduct, or audits District Attorneys for disclosure failures.

Ethical violations are reviewed by the Texas State Bar, but prosecutions for Brady-related misconduct are exceedingly rare. The Court of Criminal Appeals has declined to impose systemic obligations and defers heavily to prosecutorial discretion in assessing materiality.

Case Studies from the State

Significant Cases Illustrating Issues of Candor

1. Michael Morton (Williamson County, 1987–2011)
   Morton spent nearly 25 years in prison after prosecutors withheld evidence that could have exonerated him. The scandal led to the Michael Morton Act—but not to reforms in Giglio tracking or law enforcement reporting.

2. Austin Police Department Internal Affairs Failures (2016–2019)
   Reports revealed that dozens of officers had sustained findings of misconduct, including dishonesty, but continued to testify in criminal cases. The Travis County DA only learned of some cases after media exposure.

3. Harris County Evidence Room Scandal (2020)
   A Houston police technician was found to have falsified drug lab results. No list existed to track the cases she influenced, and several convictions were called into question after disclosure failures were uncovered by public defenders.

Outcomes and Implications

Despite high-profile incidents and a handful of reforms, most Texas counties have no system for preventing officers with credibility-impairing misconduct from testifying. Disclosure obligations are often interpreted narrowly, and there is no process for reviewing past convictions when officers are later disciplined or decertified.

Challenges and Gaps

Identified Issues within the State’s System

• No Mandatory Giglio Lists: Prosecutors are not required to track or disclose officers with impaired credibility.

• No Reporting Duty from Law Enforcement: Police agencies are not required to notify prosecutors of sustained findings.

• Confidential Personnel Records: Internal affairs records are exempt from public disclosure under the Public Information Act.

• No Oversight or Enforcement Mechanism: There is no entity ensuring statewide compliance or uniform disclosure practices.

Legislative and Institutional Barriers

Efforts to strengthen prosecutorial oversight or mandate law enforcement reporting have faced resistance from police unions and conservative lawmakers. Civil service protections, arbitration rules, and local politics frequently prevent sustained misconduct findings from reaching prosecutors or the public.

Recommendations

Suggested Improvements in Law, Policy, and Practice

1. Mandate Prosecutorial Giglio Lists Statewide
   Require each District Attorney to maintain and regularly update a list of officers with known credibility impairments.

2. Create a Statutory Reporting Obligation
   Require all law enforcement agencies to notify prosecutors within 30 days of sustained misconduct findings relevant to courtroom testimony.

3. Integrate TCOLE with Prosecutorial Systems
   Mandate that TCOLE share decertification data with District Attorneys and develop a secure, searchable database for impeachment review.

4. Strengthen Art. 39.14 with Implementation Guidance
   Amend the Michael Morton Act to explicitly require disclosure of internal affairs files involving testifying officers and set uniform standards for timing and format.

Recommendations for Enhanced Transparency and Accountability

1. Reform the Public Information Act
   Allow for limited, redacted public access to sustained misconduct records that bear on an officer’s testimonial integrity.

2. Create a Centralized Officer Misconduct Registry
   Build a prosecutor- and defense-accessible registry of Giglio-impairing misconduct findings, updated quarterly and managed by the Attorney General or an independent body.

3. Mandate Giglio Training for All Officers and Prosecutors
   Require regular training on disclosure duties, ethical rules, and testimonial integrity as a condition of employment and licensure.

4. Audit and Enforce Disclosure Compliance
   Establish an oversight unit—perhaps within the Office of Court Administration—to conduct routine audits of prosecutor offices and publish annual compliance reports.

Conclusion

Texas has long been known for its tough-on-crime approach—but true justice requires transparency, not just toughness. The absence of a statewide Giglio system, the concealment of officer misconduct, and the lack of uniform training or oversight threaten the fairness of every prosecution. The state has reformed discovery laws in the wake of scandal—but has yet to ensure that the truth is disclosed when it matters most: in the credibility of those who take the stand. In Texas, candor must be codified, not hoped for.