Dallas County Sheriff Lupe Valdez's decision to change the way her office deals with undocumented immigrants held in the county jail seemed simple enough. Some immigrants charged with certain nonviolent crimes would be released as soon as they made bail, even if U.S. Immigration and Customs Enforcement asked for what's called a 48-hour hold. That's ICE's way of asking jailers to hang on to anyone who might be here illegally, until the feds get around to doing something about it.
Nothing involving immigration is ever simple, especially in Texas, especially now. Valdez's move would help reduce the jail population and please immigration advocates upset that immigrants charged with lesser crimes were spending extra time alongside inmates being held for worse. Texas Republicans wigged out and accused the Democratic sheriff of turning Dallas into a sanctuary. Governor Greg Abbott took some state grant money away from the county unless Valdez changed her mind. Valdez pointed out that her office had yet to turn down any hold request from ICE.
And then things got a little worse. What started out as a small change in a jail policy over 48-hour holds has led to a decision that could sharply limit the information the public can see about who's being held in the public's own jails. That's arguably a bigger deal than the fight over whether some immigrant busted for possessing a baggie of weed has to spend an extra two days in jail while ICE makes its move.
The Texas Tribune decided to test Valdez's claim and sent her office a public records request seeking booking information on any undocumented inmates. The county refused to release the records, claiming that jail records, which are entered into something called the Adult Information System, are judicial information. Since Texas courts are not subject to the same public records requirements as the legislative or executive branches, the sheriff's office said it didn't have to pony up the records. Ken Paxton's attorney general's office agreed with Valdez.
Joe Larsen, an open government attorney who serves on the board of the Freedom of Information Foundation of Texas, says the opinion ostensibly allows the DSO to withhold whatever jail information it wants.
"From what I see, none of the booking information has to be released," Larsen said via email Wednesday. "If the sheriff's office is working on behalf of the judiciary, I would think the judiciary would still be required to release this information — not under the Public Information Act, because they are not subject to it — but under the common law and constitutional rights of access. However, the opinion does not even state which court or other entity of the judiciary is supposedly the custodian of these records and on whose behalf the Sheriff holds them. It's not like you can point to a grand jury and say 'It's their records.' The Sheriff runs the jail. They are the Sheriff's records. It's a mess."
One wrinkle in Texas' system of deciding which records are open is that the attorney general's office isn't allowed to check whether Dallas County's jail records really are court records. If the sheriff's office says booking information is contained in a system intended for judicial use, the attorney general has to accept that's the fact and base his opinion on it. From the opinion:
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"You indicate that the submitted information is maintained by the sheriff's office to assist the county judiciary in the tracking of criminal cases and criminal defendants. Based on your representations, we conclude the submitted information is information collected, assembled, or maintained by or for the judiciary. This the submitted information is not subject to the [Texas Public Information] Act and need not be released under the Act."
Although the opinion is limited in scope to Dallas County booking records, Larsen says other law enforcement agencies across the state that hold booking records will use it as a basis to withhold information. Collin County, for instance, could decline a request from a media organization for the mugshot of the attorney general himself, who was booked into Collin County Jail on securities fraud charges in August.
How scary is it that jail booking records can apparently be released or held at the whim of the county? That depends on how much you trust your government. The Fort Worth Star-Telegram's editorial board, for one, isn't too happy about the decision. "Our society does not operate secret jails," the paper wrote.
Not on U.S. soil anyway, at least as far as anyone knows, which in Texas might not be very far now.