In the past six years, hundreds of Texas police officers and jailers facing felony charges have been given the opportunity to avoid prison by surrendering their law enforcement license in plea bargain agreements. KXAN investigations in 2019 and again in 2021 have found this process is widespread and hasn’t slowed, but new legislation at the state Capitol could upend the bargain system and change how the state handles troubled officers.
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AUSTIN (KXAN) – After her coma, Michele Gonzales spent months relearning how to walk, eat and talk. The accident that nearly left her dead unfolded in seconds, as she walked across the parking lot of a south Austin gas station.
Video of the incident, captured at 2 a.m. on Feb. 8, 2018, shows Gonzales illuminated for a moment by the headlights of Adam Bryant Marsh’s Dodge pickup just before she’s hit.
Midway through a wide turn around the gas pumps, Marsh’s truck slams squarely into Gonzales, her head barely above the hood of his lifted pickup. The truck pops up twice, as Marsh’s front and back tires roll over and crush Gonzales’ body. Then, the truck is gone. Marsh, a 33-year-old Austin Independent School District police officer at the time, did not stop or call 911.
Gonzales will never fully heal. She was disfigured and continues to suffer medical problems, according to a pending civil lawsuit against Marsh.
Robert McCabe, an attorney representing Marsh, previously said Marsh never saw Gonzales and didn’t know he’d hit anyone. It wasn’t until weeks later, as the police searched for the truck and driver and news stations including KXAN began airing footage of the incident, that Marsh realized what had happened. He then turned himself in and voluntarily resigned from AISD PD, McCabe said.
Five months after the gas station incident, Marsh was indicted in Travis County on a third-degree felony — accident involving serious bodily injury — punishable by two to 10 years in prison.
But the sentencing judge didn’t order Marsh to serve any time behind bars. Instead, Marsh pleaded no contest and accepted a plea agreement that included three years deferred adjudication, 80 hours of community service and the permanent surrender of his peace officer license, barring him from ever working as a police officer in Texas again, according to court records.
Gonzales said the sentence was “not enough.”
“I want to know why I was treated like absolutely nothing, like my life had no meaning,” she said at Marsh’s January 2020 sentencing hearing. Gonzales has sued Marsh in civil court, and the case remains pending.
Marsh could not be reached for comment for this report. However, Marsh’s attorney provided a statement concerning the license surrender.
“The incident had no connection to his job as a peace officer. Despite that, for whatever reason, it was critically important to the complainant (Gonzales) in that case that Mr. Marsh not be a police officer any longer. Given the remaining favorable parameters of the plea offer that we negotiated, volunteering to permanently surrender his peace officers license was acceptable to Mr. Marsh. Jail time was never negotiated away in exchange for the surrender,” McCabe wrote in a statement to KXAN.
Austin ISD did not provide comment concerning Marsh’s tenure with the district or his resignation. “Only comment is to confirm that the officer is no longer an employee at AISD,” wrote Scott Thomas, AISD’s Assistant Director of Public Affairs and Operations, in an email responding to a request for comment.
Gonzales’ concern with the severity of Marsh’s sentence, and Marsh’s plea bargain involving the surrender of his peace officer license, is not isolated.
System of surrenders
In a 2019 investigation, KXAN reviewed nearly 300 permanent surrender cases and found most involved a criminal charge or allegation of criminal misconduct. In most cases, the accused officers and jailers negotiated plea bargains and rarely spent time behind bars. In some cases, officers were allowed to surrender their license to stop criminal investigations by their own department, meaning they were never arrested or charged with a crime.
In a follow up investigation, KXAN found 145 more permanent surrenders, from late 2018 though spring of 2021, follow a similar pattern. Peace officers charged with serious crimes — including felonies for violent offenses, sex crimes or abuses of official power — continue to bargain their badges and few serve time in prison.
Out of 145 cases, 109 officers took plea agreements. In 32 remaining cases, it is not clear if a plea agreement was reached or an officer faced jail time. KXAN found only seven cases in which a licensed officer was sentenced to jail or prison–three of those sentences were for three days in county jail, two were jail sentences of less than six months and only one case, a seven year sentence, involved prison.
In Jefferson County a police officer working at Beaumont United High School was indicted in April 2019 for “deviate sexual intercourse” with a student. He was charged with improper relationship with a student, a second-degree felony punishable by two decades in prison. He accepted a plea deal, surrendered his license and got 10 years deferred adjudication. He was not sentenced to prison and was not required to register as a sex offender, according to court records.
In Brown County, a jailer was arrested for having sex with a person incarcerated in the jail. The jailer was charged with violating that person’s civil rights and faced up to two years behind bars for the state jail felony. The jailer took a plea deal, surrendered his license and received five years of deferred adjudication, according to court records.
Many of these plea bargain cases have happened in Central Texas, as well. Alan Dieguez, a former El Paso police officer, was accused of speeding at approximately 100 mph with a blood-alcohol level twice the legal limit and crashing his car into the back of an 18-wheeler on Interstate-35 in Williamson County on June 21, 2016.
The driver of the semi-truck that was hit, 56-year-old Dane Rutter, got out and was struck and killed by a separate 18-wheeler that lost control after hitting debris from the initial wreck. Investigators believe Rutter was trying to check on Dieguez and possibly render aid, according to district court records and state trooper dashcam video of the crash’s aftermath.
Rutter’s daughter, Michelle Postert, said her dad was a hunter, a fisherman, a trucker and an “awesome guy.”
“My father was very loved … He is very missed,” Postert said. “He was a person. He wasn’t just somebody that got ran over.”
Postert and her dad lived next door to one another in Stockdale, a small town about 40 miles southeast of San Antonio. Postert said they spoke daily. She was not surprised to learn her dad had exited his truck, apparently to help Dieguez, because he had been an EMT at one time.
“He would help anybody. If you were standing on the side of the road, he would stop and help you,” Postert said.
The Williamson County grand jury indicted Dieguez on a single count of intoxication manslaughter in October 2018. He faced between two and 20 years in prison, but a plea agreement with the Williamson County District Attorney’s Office allowed Dieguez to avoid prison.
“The case wasn’t strong enough for a conviction,” Dieguez told KXAN in an April 6 phone call. When asked why he decided to plead guilty in May 2019, Dieguez said he “Had a kid on the way” and “didn’t want to take the chances” of a prison sentence that could’ve stretched two decades.
“I had a 50/50 chance of getting sentenced by people who don’t know me and that’s a big risk,” Dieguez said in the call.
The judge sentenced Dieguez to eight years of community supervision and permanently stripped his peace officer license. In an unusual twist, KXAN’s investigation discovered Dieguez was sentenced to 120 days in the Williamson County Jail, but there is no record in either Williamson County or El Paso County of Dieguez serving that time.
For Postert, the punishment was never adequate.
“I think they let him go because he was a cop,” Postert said. “If it would have been you or I, I don’t believe we would have got the same treatment.”
Williamson County District Attorney Shawn Dick said the facts of the Dieguez case were more complicated than his being a police officer and the importance of his TCOLE license. Dieguez was technically not the person who directly killed Rutter, but “his actions set in place a chain of events that led to the victim’s death,” Dick said. He believes the state likely would have had trouble convincing a jury to convict Dieguez on an involuntary manslaughter charge related to Rutter’s death. Instead, they settled the case with a plea agreement.
The El Paso Police Department terminated Dieguez’s employment May 13, 2019 — five days after Dieguez pleaded guilty to the second-degree felony. The termination notice KXAN obtained from the department said Dieguez’s off-duty drunk driving crash in Williamson County and his guilty plea to intoxication manslaughter violated the city’s policies and regulations and “brought discredit to the department,” according to a termination notice signed by EPPD Chief Greg Allen.
‘Not cut out for this business’
Experts in police licensing and officials in district attorneys’ offices in Travis, Williamson and Bexar counties have told KXAN this system of plea bargains and permanent surrenders is a consequence of the Texas Commission on Law Enforcement’s limited authority to revoke licenses.
Dick said taking an officer’s badge does become part of the calculation in handling these cases. But a better system would give that administrative authority to TCOLE. Dick acknowledged TCOLE can strip an officer’s license, but that “authority is very limited and used very infrequently.”
“I think if TCOLE were able to handle those problems, you would get a lot more immediate response from law enforcement agencies and you could really eliminate problem officers sooner and quicker and not jeopardize cases — not jeopardize the community,” Dick said. “The vast majority of police officers are doing it right. The vast majority of prosecutors are doing it right. But when prosecutors or police officers do something wrong, they need to be held to account. Otherwise, the public loses faith in everything we d — in our whole system.”
In a previous interview, former Travis County District Attorney Margaret Moore, who lost her post in 2020, said taking police officers to a trial is a “huge gamble.” Losing at trial can mean those officers are free to go back to policing.
Representatives of the law enforcement community, like Kevin Lawrence, agreed that bad officers exist and should be removed from law enforcement. Lawrence is executive director of Texas Municipal Police Association, TMPA, a major police union in the state representing 30,000 municipal peace officers.
“Nobody hates a bad cop more than a good cop. And being a bad cop is not limited to just committing criminal offenses. There are some people who are just not cut out for this business,” Lawrence said.
But, he said, Texas should be cautious about giving TCOLE authority that could undermine officers’ due process rights. If TCOLE were given more authority to revoke a license, that process “should include due process, and it should include standardized provisions about what constitutes cause,” he added.
So, what do experts say the standards should, or could, be?
‘Where a lot of states fall down’
Mike Becar, executive director of the International Association of Directors of Law Enforcement Standards and Training, or IADLEST, says his organization provides the ideal standards for removing licenses from officers. Becar’s organization is made of state peace officer training and standards commissions, like TCOLE.
Those standards are no secret. IADLEST posts all of them online for the public, including how to handle decertification. TCOLE’s Executive Director, Kim Vickers, also serves as president of IADLEST.
Becar said his organization considers Arizona, Idaho, Missouri, Oregon and Florida to have the best current standards for decertification.
“What makes them have good legislation is they can decertify for pretty much any misconduct that an officer is involved in. That can be criminal or non-criminal,” Becar said. “That’s where a lot of states fall down. They can only decertify for criminal convictions.”
But, no other state we contacted had decertified nearly as many as Georgia. Since 2015, Georgia’s Peace Officer Standards and Training Council decertified 3,648 licensees. Georgia POST has the authority to investigate and sanction peace officers any time an officer is terminated, resigns in lieu of termination, is charged with a crime or loses rank over a demotion, according to state law.
Georgia, unlike Texas in most cases, does not require a conviction to take action against someone holding a police license.
TCOLE’s authority to permanently revoke a peace officer’s license is mostly confined to cases of officers convicted of felony or certain misdemeanors, or being placed on community supervision, according to state administrative code. There are some exceptions; for example, a license can be revoked for repeatedly failing to obtain continuing education, a dishonorable military discharge or making a false report to TCOLE.
The problem with restricting a licensing authority’s revocation power, Becar said, “is that an officer can commit a lot of misconduct that never rises to a felony.”
When officers are fired rather than stripped of their license, they can continue working and move to another department that is often smaller, said Roger Goldman, a law professor at St. Louis University School of Law and a nationally recognized expert on police licensing.
Goldman called them “wandering officers,” referencing a term coined by two professors, Ben Grunwald and John Rappaport, in their 2020 study of the phenomenon of roving cops with troubled work histories. Goldman said he believes it is the largest study of the issue ever undertaken.
Grunwald and Rappaport examined 98,000 full time Florida law enforcement officers over a 30-year period, according to their Yale Law Journal article. They found an average of about 1,100 previously fired officers in any given year were working for a Florida law enforcement agency. Those fired officers struggled to find new work and typically moved to smaller agencies with fewer resources, the report found. It also said those smaller agencies tended to police areas with slightly larger communities of color.
“Wandering officers are more likely than both officers hired as rookies and those hired as veterans who have never been fired to be fired from their next job or to receive a complaint for a ‘moral character violation,’” according to the article. “These results suggest that wandering officers may pose serious risks, particularly given how difficult it is to fire a police officer.”
Goldman said it is the best interests of good officers to weed out “bad apples” that can bring disrepute on an agency.
Kim Vickers, executive director of TCOLE and President of IADLEST, echoed that sentiment.
“We’ve got to sit here, and our job is to regulate that, and we’re kind of hamstrung a little bit as to what we can do on some of that,” Vickers added.
Outside of an adjudication in a criminal case, Vickers said TCOLE has little authority to revoke an officer’s license. Though Vickers said he considers Texas a leader in law enforcement, “in this particular area, in my opinion, we’ve fallen behind.”
There are currently two bills working through the state legislature that could further empower TCOLE. Vickers said he is “excited” about potential improvements.
Should those bills pass, TCOLE could get more authority to delicense officers, but the bills face tough questions and opposition from some in the law enforcement community.
‘Toothless’ and ‘Broken’
State Sen. Juan “Chuy” Hinojosa, D-McAllen, authored SB 485. The legislation would direct TCOLE to make policies for investigating licensed officers for disciplinary action, issue subpoenas, temporarily suspend a license on an emergency basis and revoke a license for “improper or unlawful acts in connection with employment as an officer that could result in a miscarriage of justice or discrimination.” The bill specifies a list of such acts that includes using excessive force on multiple occasions and several other potentially illegal acts.
Hinojosa’s bill has not gotten a public hearing as of mid-April.
Rep. John Cyrier’s bill, HB 1550, which also impact’s TCOLE’s regulator authority, has gotten a hearing.
Cyrier, a Lockhart Republican, chairs the House Sunset Commission. That commission reviews state agencies and recommends improvements to them or abolishing ones that are no longer relevant. TCOLE has been in sunset evaluation, and Cyrier said his bill addresses problems discovered during that process.
At an April 1 hearing before the House Homeland Security and Public Safety Committee, Cyrier testified on his bill. He said the Sunset Commission probe found TCOLE “has no meaningful role in enforcing standards of conduct or establishing disciplinary standards of conduct for law enforcement,” and “the state’s current regulation is toothless and fragmented with poor accountability, a lack of statewide standards and outdated training.”
In a word, Cyrier called TCOLE “broken.”
Regarding changes to TCOLE’s ability to revoke a peace officer’s license, the main difference between the mechanics of two bills is that Hinojosa’s would directly enact statewide changes and bolster TCOLE’s authority.
On the other hand, Cyrier’s bill would not directly change TCOLE’s ability to decertify an officer. It would establish a “Blue Ribbon Panel” made up of mostly law enforcement interests that would take several months to study and make recommendations on “changes to the commission’s authority to discipline a license holder for violations of law or other misconduct.” That panel’s report to the legislature outlining recommendations would be due in June 2022.
Rep. James White, R-Hillister, chairman of the Homeland and Public Safety Committee, said he was concerned lawmakers would be “kicking the can down the road” by setting up a panel to study the problem rather than taking action during this session.
“We consider ourselves a blue ribbon committee,” White told Cyrier during an April 1, 2021 hearing on Cyrier’s Sunset bill.
“We’re hearing — and some of these people may be in the audience, they may be on the video stream, and they’re hurting right now. So, I need to be able to explain to them when is the kickoff of us having a restored TCOLE that is promoting and ensuring that our law enforcement officers … they’re performing constitutional law enforcement today, not after the Blue Ribbon Commission, OK?” White asked Cyrier during an April 1, 2021 hearing on Cyrier’s Sunset bill.
‘Direct attack on working cops’
Testimony at the hearing presented a mixed perception of the bill ranging from approval to concern to outright opposition.
A representative of the Sheriffs’ Association of Texas said his organization supports Cyrier’s legislation but said the legislature should properly fund TCOLE to handle its duties.
Jeff Garner, a captain with the North Richland Hills Police Department, said, “we support TCOLE’S authority to revoke a peace officers license for egregious issues of misconduct, which are supported by investigation and thorough documentation.”
Jennifer Szimanski, a public affairs coordinator for Combined Law Enforcement Associations of Texas, or CLEAT, testified in opposition to Cyrier’s bill. CLEAT is one of the largest police unions in the state.
Cyrier’s bill would shift TCOLE from a licensing and training commission to more of an investigative agency, would restrict local agencies’ abilities and “invade the constitutional boundaries of cities, towns and counties,” Szimanski said.
“We’re in difficult times in the country, and if we want more law enforcement to do better, and if we want to avoid another George Floyd-type incident, we should be focused on developing and training our officers at a higher level,” Szimanski said. “All of the legislation we see this session is a direct attack on working cops and is punitive in nature. And, this bill is no different.”
Floyd, originally from Houston, died during an encounter in 2020 with Minneapolis police. Former Minneapolis police officer Derek Chauvin knelt on Floyd’s neck for about nine minutes. Video of Floyd’s death led to nationwide protests of police brutality. Chauvin is now on trial for murder.
But, while Szimanksi said the Floyd incident should make Texas officials focus more on training, Roger Goldman, of St. Louis University School of Law, said it is that specific incident that has catalyzed a desire in many states to enhance agencies like TCOLE and give them more power to delicense officers for misconduct.
Goldman said he has seen it “not just at the state level, but also the federal level: an interest in decertification because of the George Floyd incident.”
For example, leadership in the State of New York is considering making its decertification a state-level statute and process rather than a regulation handled at the local level, Goldman said.
“A majority of the states that decertify do not require a conviction, rather, commission of certain misconduct, like sexual misconduct, or an act of moral turpitude,” Goldman said. “That is the trend.”
Had TCOLE the ability to delicense officers for misconduct, many of the cases reviewed by KXAN may not have had the permanent surrender baked into the plea agreement. For example, in the case of Alan Dieguez in Williamson County, TCOLE may have stripped the former El Paso police officer’s license after his blood-alcohol level was found to be over twice the legal limit.
Without a change to Texas’ law, and TCOLE’s authority, that bargaining power Dieguez had will remain. The pattern KXAN discovered of hundreds of officers using their badges in plea deals will continue.
Director of Investigations & Innovation Josh Hinkle, Investigative Photojournalist Ben Friberg, Digital Executive Producer Kate Winkle, Graphic Artist Rachel Garza and Editor Eric Lefenfeld contributed to this report.
This article originally appeared on KXAN Austin